R v Rappel
[2017] ACTSC 38
•24 February 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Rappel |
Citation: | [2017] ACTSC 38 |
Hearing Dates: | 18, 19 July and 5, 6, 7, 8 September 2016 |
DecisionDate: | 24 February 2017 |
Before: | Burns J |
Decision: | See [152]-[156] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offences against the person – murder – assault occasioning actual bodily harm – contravening a protection order – plea of guilty – disputed facts – intention – worst case – sentenced to terms of imprisonment. |
Legislation Cited: | Crimes Act 1900 (ACT) ss 12, 24 Crimes (Sentencing) Act 2005 (ACT) s 35(4) Evidence Act 2011 (ACT) s 65 |
Cases Cited: | Arthars v The Queen [2013] VSCA 258; 39 VR 613 Burrell v The Queen [2009] NSWCCA 163; 196 A Crim R 199 R v Twala (NSW Court of Criminal Appeal, 4 November 1994, unreported) |
Parties: | The Queen (Crown) Marcus Rappel (Offender) |
Representation: | Counsel Mr S Drumgold with Ms Christensen (Crown) Mr S Whybrow (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Ben Aulich and Associates (Offender) | |
File Number: | SCC 204 of 2015 |
BURNS J:
Marcus Rappel, on 3 March 2016 you were arraigned on an indictment dated 21 September 2015 and entered pleas of guilty to the following charges:
(a)Count 1 – alleging that on 28 February 2015 you murdered Tara Costigan;
(b)Count 2 – alleging that on the same date, being a person who had been personally served with a copy of a protection order, you did contravene a condition of that protection order; and
(c)Count 4 – alleging that on the same date you assaulted Bryce Bullman, thereby occasioning to him actual bodily harm.
On 18 July 2016, you were arraigned on and plead guilty to Count 3 on the same indictment, alleging that on 28 February 2015 you recklessly inflicted grievous bodily harm on Rikki Schmidt.
The offence of murder, contrary to s 12 of the Crimes Act 1900 (ACT) (the Crimes Act), carries a maximum penalty of life imprisonment. The offence of assault occasioning actual bodily harm contrary to s 24 of the Crimes Act carries a maximum penalty of five years imprisonment. The offence of contravening a protection order carries a maximum penalty of 5 years imprisonment, a fine of $75,000 or both. The offence of recklessly inflicting grievous bodily harm carries a maximum penalty of 13 years imprisonment.
For the purposes of sentencing you it will be necessary to make findings of fact, because while a Statement of Facts was tendered there were a number of aspects of that Statement which were disputed, or where you disputed inferences which the Crown submitted should be drawn from the facts set out in the Statement. Where a fact is one which would make an offence more serious, then I must be satisfied of the existence of that fact to the standard of beyond reasonable doubt. Where a fact is one that would tend to mitigate an offence I need only be satisfied of the existence of that fact on the balance of probabilities.
Overview
On the afternoon of 28 February 2015 you purchased an axe from the Bunnings store in Tuggeranong, you drove to the home of your former partner, Tara Costigan, you smashed the front door of her home with the axe and you attacked her with the axe, killing her. At that time there was an interim domestic violence order in force which precluded you from going to the home of Tara Costigan as well as engaging in domestic violence towards her. In the course of this incident you also assaulted Bryce Bullman causing him actual bodily harm, and you recklessly inflicted grievous bodily harm on Rikki Schmidt. I will now deal with the facts in greater detail.
The facts
A Statement of Facts was prepared for the sentence hearing. There were some aspects of the Statement of Facts that you disputed, and there were other aspects concerning the use of which you and the Crown did not agree. I will deal with those matters in the course of these reasons.
Tara Costigan, who I will refer to as the deceased, was born in 1986. Her father died when she was seven and she was estranged from her mother. She grew up mostly in the care of her paternal grandmother Margaret Markham-Costigan and her father’s sister Maria Jane Costigan. For most of her life, Maria Costigan was the dominant mother figure for the deceased. The victim had a number of siblings including a younger half sister Rikki Schmidt and a half brother Derrick Filby.
The deceased had one prior significant relationship from which she had two children, SD and ED, who were aged 11 and 9 years respectively as at February 2015.
You commenced a relationship with the deceased in mid 2013. The Statement of Facts asserts that the deceased made a number of complaints to friends about aggressive or violent behaviour on your behalf during the period of that relationship. The Crown sought to lead evidence of those complaints as evidence of the truth of the assertions made by the deceased. Through your counsel, you did not object to evidence of these complaints being led as indicative of difficulties in the relationship, but you did object to this material being received as evidence of the truth of the complaints. Section 65 of the Evidence Act 2011 (ACT) (the Evidence Act) in certain circumstances permits the reception of hearsay evidence as evidence of the truth of the representation made where the maker of the representation is unavailable. In my opinion, none of those circumstances are shown to apply in the present case. Accordingly, I will receive the evidence simply as demonstrating that there were difficulties in the relationship during the period from mid December 2013 until February 2015. The deceased became pregnant to you in around June 2014.
Before you met the deceased, you were in a relationship with another woman KH. She became pregnant in about March 2013, and the two of you argued about the pregnancy, which resulted in her taking out a domestic violence order (DVO) against you. The relationship between you and KH ended in April 2013. KH subsequently gave birth to a girl named MH. In mid December 2014, notwithstanding the fact that the deceased was pregnant at that time, you contacted KH via text message saying that you wanted to be part of MH’s life, and telling her about your relationship with the deceased and her pregnancy. At the start of February 2015 you contacted KH in an agitated state and told her that the deceased had kicked you out and that you were not going to the birth of your child with the deceased. In the first week of February 2015, KH came to Canberra with her children and stayed with you for two nights at the Medina Apartments. Your relationship with her recommenced at that time. You told her that the deceased was threatening to take out a DVO against you. Subsequently, KH became pregnant again.
On 20 February 2015, the deceased called her aunt, Maria Costigan, and asked her to drive her to the police station to take out a DVO against you. At 9:30 am they attended the front counter of the Tuggeranong Police Station and obtained a pamphlet, however, the deceased went into labour during the afternoon so she did not proceed with the application for a DVO at that time.
On the evening of Friday, 20 February 2015, the deceased gave birth to a daughter, BD. You visited the deceased and BD in the hospital on two occasions. On the first occasion, on 21 February 2015, the Crown alleges that you became angry and left after 10 minutes. You dispute this description, and in particular the suggestion that you became angry, instead asserting that you became upset and left. In my opinion, it is unnecessary to resolve this issue because it is common ground that the meeting did not go well. A friendlier meeting occurred on Sunday, 22 February 2015.
The deceased was discharged from hospital on around Sunday, 22 February 2015 and returned home with BD. On Monday, 23 February 2015, you attended her home with her permission and she allowed you to bath BD. A home visit midwife was present during that meeting, which appears to have gone well.
On the morning of Tuesday, 24 February 2015, the deceased agreed to meet with you at a cafe in Erindale. That meeting did not go well, as the two of you argued and the meeting ended shortly thereafter. Also on 24 February 2015, KH, who had returned to the New South Wales (NSW) South Coast, returned to Canberra and stayed with you at the Crestview Caravan Park in Queanbeyan.
From December 2014 through to the end of February 2015 you engaged in substantial text message communications with both the deceased and KH. On Thursday 26 February 2015 there was an acrimonious text message exchange between you and the deceased’s uncle, Michael Costigan. The deceased was copied into the exchange. This exchange between Michael Costigan and yourself referenced an earlier exchange between you and the deceased’s grandmother, Margaret Costigan, in which you accidentally sent an abusive text message intended for the deceased to Maria Costigan on Monday 23 February 2015. This was followed up with a crude poem sent on Tuesday, 24 February 2015, the day you met the deceased at Erindale.
Your counsel objected to the Crown leading evidence of this acrimonious text message exchange on the basis of relevance. I am satisfied that it is relevant, as it forms part of the basis upon which the deceased subsequently sought and obtained an interim DVO against you. In that exchange you referred to the deceased’s grandmother in derogatory terms, you insinuated that the deceased had been unfaithful to you with other men, and made a statement which could be interpreted as a threat to Michael Costigan. This text message exchange was followed by a text to you from the deceased saying “stop harassing my family, I’m getting a DVO, that doesn’t mean you can’t see BD, you can see her in a controlled environment”.
On Friday 27 February 2015, the deceased attended the ACT Magistrates Court and obtained an interim DVO. The application for a final order was adjourned to 27 March 2015 at 10:15 am. The interim order restrained you from threatening to cause injury to the deceased or her children, prohibited you from being on the premises at Duggan Street, Calwell where the deceased lived, and from being within 100 metres of the deceased or her children, or contacting the deceased or her children except, relevantly for present purposes, that you could contact the deceased in writing to facilitate contact with BD and you could have contact with BD as arranged with the deceased.
Attached to the application for the DVO was a document outlining the basis for the application as asserted by the deceased. Your counsel objected to this material being received as truth of the representations made by the deceased in the application, but did not object to the material being used for a non-hearsay purpose. With one exception, I accept that this hearsay material does not fall within any of the exceptions found in s 65 of the Evidence Act, and as such cannot be received as evidence of the truth of the representations made by the deceased. The one exception is the statement made by the deceased, that just prior to Christmas 2014, you had told her that you had been using the drug ice for about six months. I am satisfied that this representation was made in circumstances that make it highly probable that the representation is reliable, in that you have given evidence, and made statements to others, to the effect that you were using ice for some eight months prior to murdering the deceased.
On Saturday, 28 February 2015, you and KH left the Caravan Park and you went shopping in Griffith in KH’s car. KH described your mood at that time as “great”. While talking to her, you brought up the subject of collecting property from the deceased’s house and suggested that you seek police assistance. You, KH and the children went to the City Police Station and you were served with the interim DVO at 1:30 pm by Constable Greg Solomon. While reading the order, you asked Constable Solomon “How do I go about getting my stuff back?” Constable Solomon looked at the interim order, and told you that you would need to go to the Magistrates Court and make an application to amend the order to allow you to attend on one occasion with police to collect your belongings. You complained that the deceased had only taken out the interim order because you were with another woman, and said that you had been to Tuggeranong police station a few days earlier enquiring about getting your property back from the deceased’s house. Constable Solomon reiterated that you could not go to the deceased’s home without getting the order amended, and you responded “the system’s a joke”, before leaving the police station.
Outside the police station you said to KH, in what she described as a joking manner, “I did say if another girl slapped another DVO on me I would kill her”.
KH read the attachment to the application for the DVO, and formed the belief based on that material that you had lied to her about aspects of your contact with the deceased since December 2014 when you recommenced your relationship with KH. She came to believe that you were attempting a reconciliation with the deceased, and that you had lied to her about your contact with, and continuing relationship with the deceased. You admitted to lying to her saying that you had lied to avoid stress. You said to her “it’s over for me now, you’ll never see me again, fuck her”. Clearly the “her” you were referring to was the deceased. During the return trip to Queanbeyan KH told you that she could not be with someone that she did not trust, effectively telling you that your relationship with her was over. You threw the interim DVO out of the window of the car halfway between Canberra and Queanbeyan.
At 2:30 pm you and KH arrived at Queanbeyan. You got out of the car and said to your child MH “Bye [MH], I’ll never see you again”, and then you said to KH “do me a favour, always look after your children”. You then walked over to your white Ford utility. KH followed you as she was becoming concerned for your well-being, as you kept repeating that you did not have your daughters or your family. You walked over to a nearby toilet, and KH waited outside. After you left the toilet you got into your car and drove off before KH could stop you. She followed you in her car to a petrol station in the middle of Queanbeyan and tried to talk to you, however you walked away to pay for your fuel. Records show that you paid for your fuel at 2:53 pm. KH was filling her car, and asked you to wait until she got back from paying for her fuel. After she returned to you at your utility she said “Marcus, please don’t do anything stupid”, thinking that you are possibly going to harm yourself. You then said, “It’s over for me, I’ve lost my family, I’ve lost my daughters and you won’t see me again. I should kill that bitch for what she did”. You then took your phone out, and KH said “Don’t text her”. You said “I’m going to get my stuff”. KH said “Don’t text her, don’t go there, just leave it” and you responded “There is no point, I’ve already got a black mark against my name, she is using the system to keep [BD] away from me and keeping my stuff from me”. As you were saying this, you were using animated hand gestures and at one point KH flinched and you said “If you are going to be scared of me, just fucking get out”. She got out of the car, and you drove off, spinning the rear wheels of your car as you left.
In your evidence at the sentence hearing you disputed having said to KH words to the effect of “I should kill that bitch for what she did” at the service station in Queanbeyan. It was suggested by your counsel in cross-examination of KH that she had said to you “You wanted to kill me after I put a DVO on you. You should kill that cow (or bitch)”. This was denied by KH. In your evidence you denied ever making such a remark to her.
It is appropriate at this point that I set out my general findings as to your credibility and that of other significant witnesses. I am satisfied that KH was an honest witness, who was prepared to give evidence which did not always place her in a particularly favourable light. There was nothing about her evidence, or the way in which she gave her evidence, which would lead me to conclude that her evidence was not credible or reliable. I accept her evidence that you said to her at the service station in Queanbeyan on 28 February 2015 words to the effect of “I should kill that bitch for what she did”.
Another witness of some significance was Gary Monahan, a caseworker at the Alexander Maconochie Centre (AMC) who gave evidence of conversations he said that he had with you in early March 2015 after you had been remanded in custody for these offences. I have previously dismissed an application by you to exclude the evidence of Mr Monahan: R v Rappel [2016] ACTSC 295. In the course of refusing that application, I set out in some detail the evidence of Mr Monahan, and the circumstances surrounding your contact with him. I will not now repeat that evidence. It is sufficient to note that Mr Monahan gave evidence that on 3 March 2015 he spoke to you in his role as your case manager at the AMC. He informed you that you should not talk about the offence with which you were charged, as if you were to make admissions he was obliged to record them in case notes. He said that you responded “That’s like them wanting to say I was insane. Fuck that. I wanted to hurt the bitch”. Mr Monahan went on to say that you complained that the victim had “lied on an AVO application”, and that she was “the second partner who had lied to get an AVO” against you. You then said, according to Mr Monahan, “You have no hope if you are male”. Mr Monahan also testified that when completing a Legal Aid Application with you, he asked you what plea you wanted to enter to the charge and you replied “Guilty. I wanted to hurt the bitch, and I knew what I was doing. So I can only plead guilty”. Mr Monahan also said that you said to him “This is not too bad. I don’t have to worry about anything in here and I haven’t felt this relaxed in a long time”.
Mr Monahan also testified having spoken with you again on 13 March 2015. He said that you asked him what temporary insanity meant. Mr Monahan said that he asked you whether you meant temporary insanity or diminished responsibility, to which he said you replied “The one where you have used drugs and you don’t know what you are doing for a period of time”.
You denied having said these things to Mr Monahan. Mr Monahan appeared to me to be a frank and honest witness, doing his best to recollect events so as to provide honest and accurate evidence to the Court. There was nothing about his evidence or about the way in which he gave it which made me doubt his credibility or the reliability of his evidence. Your counsel criticised Mr Monahan for not keeping the handwritten notes which he made of these conversations before he transcribed them onto case notes on the electronic database at the AMC. I have taken that criticism into account, but I nevertheless accept the evidence given by Mr Monahan about these conversations. The Crown also relied on the evidence of Derrick Filby, the brother of the deceased, about a conversation he said he had with you, one or two months before you killed the deceased. He said that while the two of you were travelling in a car, there was a conversation about your words and behaviour concerning KH and the deceased at work that day. Mr Filby said that you were initially apologetic, but you then, in an outburst of anger, punched the windscreen and said that you would kill the next person who “put a DVO” on you.
You denied that this conversation occurred. There are circumstances which provide some support to the evidence of Mr Filby. You agree that on 28 February 2015, after being served with the interim DVO obtained by the deceased, you said to KH “I did say if another girl slapped another DVO on me I would kill her.” This statement suggests that you had, prior to 28 February 2015, threatened to kill the next woman who obtained a DVO against you. This is consistent with the evidence of Mr Filby. In your evidence you did not seek to explain the statement you made to KH by reference to any other occasion upon which you had made such a statement. In addition, on your own account you were using both steroids and methylamphetamine at the time Mr Filby said that this conversation occurred, which is consistent with his description of you having a sudden outburst of anger at the time he alleges you made the statement.
It was clear from the evidence of Mr Filby that he holds great personal animosity towards you. This is perfectly understandable in the circumstances, but it is a fact that I must take into account in determining whether I can be satisfied to the requisite extent that this conversation took place. While I am inclined to think it likely that the conversation did take place, I am not satisfied beyond reasonable doubt that it did.
You, on the other hand, were a poor witness. You tended to be argumentative and suspicious of questioning. Your demeanour as a witness was consistent with your general personality as revealed by the evidence. You have a tendency to suspicion, bordering on paranoia, and you also have a tendency to aggression. For that reason, I do not rely significantly on your demeanour as an indicator of whether you were telling the truth.
Of much greater significance is the fact that I am satisfied that you lied in your evidence about a number of relevant matters. First, I am satisfied that you lied about the conversation that you had with KH at the service station in Queanbeyan, shortly before driving to Tuggeranong, obtaining an axe, and killing the deceased. Secondly, I am satisfied that you lied about the conversations that you had with Mr Monahan at the AMC. Thirdly, I am satisfied that you lied in your evidence when you said that you had participated in a phone call with the deceased in which she told you that you could not collect your property. The evidence by way of the text messages was overwhelmingly to the effect that the deceased was trying to adopt a reasonable and rational approach to dealing with you and your issues. You tried to explain the apparent difference between the attitude demonstrated by the deceased in the text messages and in the supposed telephone conversation that you had with her by suggesting that she was trying to make herself look good in the text messages. I reject that proposition. It is inherently unlikely, bearing in mind your personality and the extent and nature of the text message conversations in which you engaged, that you would not have said something to either the deceased or to members of her family or your family about the contents of such a phone call if it had occurred. Fourthly, I am satisfied that you lied when you gave evidence that the deceased had said to you “You will never see your daughter”. This is completely inconsistent with the contents of the text message conversations. It is also completely inconsistent with what actually occurred after the birth of your daughter. Finally, I am satisfied that you lied when you gave evidence that the deceased had admitted to you that she had exchanged “salacious material” with her ex-boyfriend during your relationship. It was quite clear from the text messages you and she exchanged that you were concerned about perceived infidelity on her part. She denied that allegation. You, however, never once mentioned to her the supposed admissions she was said to have made to you about this material. Your explanation for this, that both of you knew about that matter, is quite implausible. A number of these lies are very significant, because they go directly to the central issue in these proceedings: what was your state of mind at the time that you murdered the deceased? Your lies about your conversations with KH and Mr Monahan were calculated to avoid any suggestion of premeditation on your part with respect to the murder of the deceased. I have no doubt that you are aware that the evidence of KH suggests that the thought of killing the deceased had occurred to you at the latest by the time that you were at the service station in Queanbeyan. A finding that such a statement was made by you at that time strongly supports the inference that you purchased the axe in order to kill the deceased. Your lie about this conversation with KH is therefore a lie relevant to a central issue in this matter. Similarly, I have no doubt that you recognise that, if it is accepted that you told Mr Monahan that you wanted to hurt the deceased and that you knew what you were doing when you struck her with the axe, this is inconsistent with the version of events you described to the psychologist, Dr Martin Sellbom, in which you said that you could not control your actions.
The determination that you have told lies in your evidence has an important consequence. It affects your credibility generally, that is, whether what you have said about these events is to be accepted, both in terms of what you otherwise said in your evidence, and in what you have said about these events to others, including Dr Sellbom. I am satisfied that you are not a credible witness, and your version of events, both in your evidence and as provided to Dr Sellbom, should not be accepted unless it is supported by other cogent evidence.
Returning to the Statement of Facts, after leaving the service station at Queanbeyan you drove to the Bunnings hardware store in Tuggeranong where at 3:34 pm you purchased a Fiskars 600 mm universal axe for $85.00. You then drove to Duggan Street, Calwell. At that time the deceased, her 8 day old daughter BD, her 9 year old son ED, her 11 year old son SD, her 18 year old sister Rikki Schmidt and Ms Schmidt’s 18 year old boyfriend, Bryce Bullman, were in the house. Also present was the deceased’s brother Derrick Filby, who was driving a white Nissen Pulsar which was parked in the visitors car park, and to a certain extent visible from the street. You knew Derrick Filby well, as you had worked together for about four months, including a period of approximately two to three weeks when there was a short breakdown in your relationship with the deceased. You lived with Mr Filby before you and the deceased reunited. While Mr Filby was at the deceased’s house, she expressed to him concern that you may come to her house after receiving the DVO.
CCTV footage was obtained from the front of a home in Duggan Street, located on the corner of Outrim Avenue and Duggan Street. This reveals you driving your white utility past the driveway to the deceased’s residential complex at 3:39 pm, 3:40 pm, 3:41 pm, 3:53 pm, 4:04 pm, 4:05 pm, 4:06 pm, 4:07 pm, 4:08 pm, and 4:09 pm. At 4:14 pm Mr Filby left the deceased’s house and drove out of the driveway of the complex at 12 Duggan Street. Your car is seen to drive past again at 4:20 pm, before finally returning at 4:25 pm and turning into the driveway of 12 Duggan Street. The Crown alleged that you did not enter the complex containing the deceased’s home until 4.25 pm because, on your earlier passes, you observed Derrick Filby’s car parked in the visitor’s car space adjacent to the deceased’s home, and you were waiting for him to leave. I am not satisfied this was the case. I am not satisfied that you could identify the car in the position in which it was parked from the roadway as you drove past. In any event, Mr Filby was driving his sister’s car and there is no evidence that you were familiar with that car. In addition, Mr Filby had departed by 4.20 pm, but you did not enter the deceased’s complex when you drove past at that time, and instead you drove away and returned five minutes later.
At this time, 9 year old ED and 11 year old SD were seated in the lounge room watching television. The deceased was in her bedroom breastfeeding BD. Rikki Schmidt and Bryce Bullman were lying on a bed in the garage, which had been transformed into a bedroom.
You stopped your car in the driveway, leaving the engine running. You took the axe and used it to smash in the front door. As this was happening, the deceased, Rikki Schmidt and Bryce Bullman all ran to the lounge room to see what was happening. The deceased was holding BD in her arms as you gained access to the house. She saw you and started running towards the laundry door, still holding BD. As she reached the door, Rikki Schmidt grabbed her to pull her into the laundry. You chased her and swung the axe twice, the first striking the deceased in the left shoulder causing a deep cut through the shoulder muscle, fracturing the shoulder blade and shoulder joint, and the second striking her in the back of the neck completely severing the spine at C6 and C7 and cutting the vertebral artery. This second blow also struck Ms Schmidt’s left little finger at the end of knuckle as she attempted to pull the deceased to safety, fracturing the knuckle and cutting the skin.
A post mortem CT scan of the deceased showed her skull and first six vertebrae to be completely detached from, and out of alignment with, the remainder of the spine.
Bryce Bullman then knocked the axe out of your hands, and you punched Mr Bullman in the face and eye region, causing his nose to bleed. You then walked into the lounge room and smashed the television ED and SD were watching before walking outside, standing behind your car and screaming. This entire incident occurred while the deceased was holding BD and in front of her two sons. The fatal strike caused the deceased to fall forward onto BD. Rikki Schmidt pulled BD out from under the deceased and gave her to 11 year old SD, while 9 year old ED kicked the axe away in case you returned.
The deceased died within minutes of being struck. Rikki Schmidt suffered grievous injuries to her left little finger, and Bryce Bullman suffered actual bodily harm in the form of a bleeding nose as a result of being struck by you.
After Rikki Schmidt handed BD to SD, SD, BD and ED rushed out the back door, through a gate and were received by neighbours who attempted to calm them down. Rikki Schmidt called the ambulance, and the telephone operator attempted to calm her down and instructed her to begin CPR. Rikki Schmidt rolled the deceased onto her back and began CPR, however, due to the neck injury the chest compressions caused the deceased to bleed profusely and she died during this process. After a few minutes you came to the front door and asked “Is she dead?” Bryce Bullman responded “Yes - now fuck off”.
A short time later police arrived at the scene and found you crouched behind your car screaming. You took your singlet off and threw it to the ground next to you and began rocking back and forth. Constable Wahuy Symon asked you for your name, and you responded “Marcus”. You said “she’s in there, she’s dead, all I wanted was to get my stuff and she has an AVO on me and my stuff...I killed her with an axe”. Constable Symon asked you where the axe was, and you responded that it was in the house. You were then taken into custody. A short time later an ambulance arrived and the deceased was declared dead at the scene.
During a subsequent search of your car, police located a black Caribee bag, inside of which they located a small black box containing 2 vials of T-Max 400 mg long acting testosterone, and a number of packaged syringes, needles and alcohol swabs.
You were taken to the ACT Watch House and at 8:55 pm you underwent an electronically recorded forensic procedure. During the course of that forensic procedure you stated “When a woman falsifies information to obtain an AVO to keep you from your child”. Police then reminded you about the caution which they had given to you but you continued “she is playing a very fucking dangerous game. Especially when the guy’s not right in the head. I think you guys hand AVOs out a little bit too fucking easy. I’m sure more people have been killed because of AVOs”.
A sample of hair taken from your beard during the forensic procedure was analysed and showed traces of methamphetamine, but it was not possible to determine when or in what quantity that drug had been consumed.
Your moral culpability
It is your contention that your state of mind at the time you murdered Tara Costigan and committed the other offences was such that your moral culpability for those crimes is diminished. To that end you relied primarily on the evidence of a psychologist, Dr Martin Sellbom. Dr Sellbom prepared two reports dated 31 January and 8 August 2016 respectively. The Crown objected to the tender of those reports and they were received provisionally as Exhibits 39 and 40. The objections raised by the Crown were that the opinions expressed by Dr Sellbom in those reports were not wholly or substantially based on any expertise possessed by Dr Sellbom, and that his conclusions did not follow from what the Crown referred to as his “observations” by which I understood it to assert that his conclusions were not supported by evidence.
Dr Sellbom also gave oral evidence supplementing and, to some extent, elucidating the contents of these reports. There were aspects of the reports and of Dr Sellbom’s oral evidence that I found to be unsatisfactory and I am satisfied that aspects of the opinions which he expressed were inadmissible. I will deal with those in a moment. Subject to those matters, the reports and the oral evidence of Dr Sellbom will be received into evidence. In other words, I will admit the report but I will indicate those points where I do not accept the conclusions reached by Dr Sellbom.
Dr Sellbom’s first report
The first report received from Dr Sellbom was directed towards whether your mental state at the time of these offences was such as to afford you a defence of mental impairment or a defence of diminished responsibility with regard to the charge of murder. Dr Sellbom, in fact, expressed the opinion that you had available to you a defence of diminished responsibility. It became apparent, however, that Dr Sellbom in giving that opinion was acting under a misapprehension as to the law applicable to establishing a defence of diminished responsibility in this Territory. It is a matter of concern that Dr Sellbom did not take the trouble to acquaint himself with the applicable law before expressing such an opinion in such a serious case, but I am not persuaded that this failure casts doubt upon his professional opinions generally.
Dr Sellbom’s first report provides a comprehensive overview of your family history, your relationships with your parents and other caregivers, your relationship with your sisters, your social history, your educational and employment history, your mental health history, your substance abuse history, your legal history and the Crown’s version of the events relevant to the offences. I will not refer to these aspects of the report in detail, as they do not appear to have been challenged by the Crown. Dr Sellbom also took an account of events relevant to the offences from you, which he then set out in his report. He said that you provided a context to explain the development of your emotional state which ultimately, he said, contributed to the offences. You told him that your relationship with the deceased was tumultuous in part due to you having developed significant sensitivity to being emotionally manipulated and exploited and as a result of your earlier relationship with KH. You explained that your relationship with the deceased was characterised at times by lies and deceptions on her part. The resulting turmoil, as well as the stress associated with not being allowed to have contact with your daughter MH from your relationship with KH, you said, placed you on a self-destructive path and you began using ice. You said that the fragile state of your relationship with the deceased contributed to the development of a fear that you would also lose your second child, which further created a wedge between you and the deceased, resulting in emotional distress.
You told Dr Sellbom that the ongoing arguments with the deceased surrounding the birth of BD affected your mental state. You told him that you were not allowed to be present at the birth, which had upset you greatly. After the birth of BD, on 20 February 2015, you said that you visited her and the deceased in hospital on 21 February 2015. You told Dr Sellbom that you read in the “maternity medical book” at the hospital that you had abandoned the child, which hurt you. Later that evening, however, you said that you asked your mother to send the deceased an amicable text message from you and that a couple of days of civil communication followed. You said that you subsequently learned that the deceased’s grandmother had told the deceased that KH was pregnant. You said that this led you, with KH’s encouragement, to send an inappropriate poem to the grandmother, which started a text message argument with the deceased’s family members. You told Dr Sellbom “this was a mess I couldn’t fix”.
You told Dr Sellbom that on the morning of 28 February 2015 your mood was “pretty good” and you were getting excited about leaving with KH and spending time with MH and starting a family. You said that in the early afternoon KH suggested that you go to the police to see whether the deceased had applied for a DVO as she had threatened to do, as you wanted to go to her house to pick up your furniture and other belongings. You said that you had previously tried to obtain assistance from the police to go to the home of the deceased to collect your belongings, but they would not assist you. You said that when you arrived at the police station on 28 February 2015, you were served with the DVO and you were informed that you were not allowed to collect your furniture, which upset you.
When you left the police station, you said KH read the DVO and pointed out to you that it alleged that you had punched her five or six times when you had previously been in a relationship with her, which she said she knew to be false. She continued to read the document and discovered that you had visited BD and the deceased on three occasions since the birth of BD, rather than one occasion that you had told KH about. You said that she began screaming “you are a fucking liar...I can’t be with you...you are going to lose all of your kids.” You said that you tried to explain but that she would not listen or understand. You told Dr Sellbom “I just lost it...and threw the DVO out the window”, meaning the car window. You said that you were reminded of the last time that you and KH were together and that you could not go through it again. You drove back to the caravan park and dropped her off, saying “you won’t see me again”. You told Dr Sellbom that you were feeling devastated and it was dawning on you that you had lost your family, including MH, that you could not see BD as the deceased had obtained the DVO, and now you had another child on the way whom you might never get to see. You said that you were also having difficulty at work. You said that you felt like everything had been ripped away from you, and you decided to end your life.
You told Dr Sellbom that you drove to a service station to fill up your car. You met KH at the service station and you said goodbye to her and MH. You denied that you told her that you “should kill that bitch for what she did”, referring to the deceased, instead saying that KH had said this to you. You told Dr Sellbom that you subsequently drove to Bunnings where you went to the garden section to buy a hose to commit suicide. You said that you were very emotionally distressed and upset by this point and you saw an axe. You said that you began thinking about your furniture, and thought to yourself, with reference to the deceased “Yeah, you want my TV, furniture etc? It’s gonna be in splinters”. You said that you then purchased the axe and decided to go to the deceased’s house and destroy the furniture. You said to Dr Sellbom “I knew I was gonna go to jail [sic]. Cops can come and shoot me dead. Great!” You continued “I was losing my kids, I had never hit a woman, but got a DVO.” You left Bunnings and drove away. You said that you kept driving for a while during which time you were screaming and smashing your hands on the steering wheel. You said that you drove past the deceased’s house on several occasions, trying to stop and calm down, and looking for Valium in your car.
You told Dr Sellbom that you eventually pulled up at the deceased’s home. You said that you remembered screaming and you tried to enter the house but the door was locked. You hit the door with the axe and pushed and kicked the door. You walked in and, you said, felt a level of rage that you had never felt before. You said the deceased came out and ran and you just went after her and hit her. You said that “it felt like an out of body experience, just watching this come about. There were no thoughts at all. I knew what I was doing but could not control myself.” You further said “it was instinctual, she ran, I chased. It was just a fucking rage. No thoughts. I never wanted to kill her, it was just rage. I swung the axe out of rage without thinking of consequences”. You said that you could not remember whether you hit the deceased once or twice, and that you were not aware that she was holding BD or that the other children were present. You apparently also asserted that you were not aware that you had injured Rickki Schmidt. You said that you then saw Mr Bullman and you dropped the axe. You said that Mr Bullman came at you, and you started to fight. Mr Bullman fell down and you walked into the lounge room, saw the TV and punched it. You left the house and, you said, then started realising what you had done. You went back into the house, saw that the deceased was not moving and asked, “is she okay? Call an ambulance!”. You said that you asked if she was dead and they told you that she was. You walked outside and dropped onto your knees and sat there screaming. When the police arrived, you said that you confessed and that you were screaming the word “no”.
You told Dr Sellbom that you had not used ice or steroids for four days prior to these events, but you explained that the steroids typically had their most significant effect on you on the fourth day post injection. You further stated that you had no intention of going to the deceased’s house to kill her. You said that you did not need to buy an axe to kill her, as you already had a hatchet in your car. You said that you bought the axe because it was necessary to destroy your wooden furniture at the deceased’s house.
Before I continue with Dr Sellbom’s first report, there are some aspects of the factual matters concerning your interactions with KH on the afternoon of 28 February 2015 which you put to Dr Sellbom which I should address. You told Dr Sellbom that, in the car on the way to Queanbeyan from the city police station on 28 February 2015, KH was screaming at you. I do not accept this to be the case. In her interview with police conducted on 7 May 2015, she told police that after she had read aspects of the DVO concerning your contact with the deceased after the birth of BD, that the two of you began arguing, but she did not want to fight because her children were there so she tried to calm you down. In her statement to police, dated 1 March 2015, she said that when she read the DVO she realised that a number of text messages that you had sent to the deceased were very similar to ones that you had sent to her, KH, in January. She said that she commented on this to you, and you became very agitated saying, “I’ve lost both my daughters, it’s been a stressful week. I lied to you so I wouldn’t have the stress”. She said that she was not going to argue with you in front of the children. She said you apologised and said “it’s all over for me now, you’ll never see me again, fuck her.” She said that you have in the past made similar comments about self harm or suicide, but you had never followed through, and she thought that this was just another comment. She said that during the return trip to Queanbeyan she told you that she could not be with someone she did not trust, and you seemed very understanding and apologetic. In oral evidence it was never suggested to KH that she had been screaming at you in the car; the most that was put to her being that she became agitated. I also do not accept that she said to you “you are going to lose all of your kids”. In her oral evidence KH denied having told you at that time that she was going away and that you would not see your child again and I accept what she said about these issues. As I have already noted, I reject your assertion to Dr Sellbom that you did not say to KH, referring to the deceased, “I should kill that bitch for what she did.” I also reject your assertion that KH in fact made a similar suggestion to you.
Returning to Dr Sellbom’s first report, Dr Sellbom conducted interviews with your mother and two sisters. Your mother stated that she learned in mid January 2015 that you had been using ice for 6 months and that you had been using steroids for 12 months. You told her that you were going to quit. Your family had recognised a change in you, but they attributed this to the breakdown of your relationship with KH. Upon learning of your drug use, your mother encouraged you to seek professional help. She said that you were “sprawling out of control and frequently talking about suicide again”. In February 2015, your mother was residing on the South Coast of NSW, but she came to Canberra for a period of two weeks to help the deceased through her confinement and support her. Your mother said that you came to the hospital the day after the birth, and she described you as looking sleep deprived and unwell. She said that you were angry in part because you felt your family were there supporting the deceased and not you. At your request, she subsequently forwarded an amicable text message from you to the deceased. This led to you visiting the deceased and BD in the hospital on 22 February 2015. The following day you came over to the deceased’s house to help her give BD a bath. Your mother subsequently left the ACT and returned to the South Coast. She did not have any direct dealings with you on 28 February 2015.
Your sister, Karina Rappel, told Dr Selbom that she saw you on 25 February 2015 at which time she described you as “frenzied” and that you appeared “sleep deprived, frustrated and fixated”. She said that you were “like an alien”. She said that you would calm down when she talked to you, but you were “freaking out about everything in his life; everything was shit to him.” She did not see you or speak to you on 27 or 28 February 2015.
Dr Sellbom also spoke to your other sister, Jackie Rixon. She said that you and she had a brief fallout prior to the date of these offences. On 6 February 2015, you came to her house to collect some belongings that she had picked up from the deceased. She said that you were agitated and argumentative. She told you that it would be best for you to leave, as her children were in bed, and she said you “lost his shit, it was a psychic (sic) rage”. She said that you were screaming incoherently, which made her afraid. She had never seen this side of you before. You ran to your car and drove at a very high speed down the street.
Ms Rixon reported that on 28 February 2015 you sent her a text message her informing her of the DVO. Later that afternoon, Ms Rixon rang you while you were driving your car. She said “He got into a psychic (sic) mode...he was screaming...I could not understand the words that he was saying”. She said that you were driving up and down the deceased’s street while talking to her, and added “He did not seem conscious of his surroundings; he was just screaming...all of a sudden, it went dead. I heard the sound of the car but no Marc. Like he flew out of the car.”
Dr Sellbom interviewed you on three occasions at the AMC, on 10 September 2015, 16 December 2015 and 17 December 2015. This was well after the time when Mr Monahan made his electronic file notes of the conversations he had with you in March 2015. Dr Sellbom described you as being alert and oriented to time, place and person. Your thought and speech processes were logical and coherent, and your concentration and memory appeared intact. You impressed as being of at least average intelligence based upon your use of vocabulary and reasoning ability. No delusional thought content was observed. You did exhibit significant paranoid ideation that was fixed on what Dr Sellbom called “previous interpersonal victimisations”. Dr Sellbom said that you complained of depressed mood and your affect was generally consistent with this report. He said that you expressed considerable remorse and guilt, which impressed him as being genuine. I will return to that opinion later in these reasons. You told Dr Sellbom that your extreme aggression would not have happened if you had not been using steroids.
It was Dr Sellbom’s opinion that you have shown evidence of an emotionally dysregulated temperament for most of your life, which has manifested in the expression of depressed mood, anxiety, frustration intolerance and anger. You have also exhibited a significant tendency towards interpersonal sensitivity and anxiety, which has manifested in an intense fear of negative evaluation, rejection and humiliation as well as, in adulthood, being victimised and hurt by others. He believes that you have incorporated anger as a predominant way of dealing with frustration intolerance. He believes that your social anxiety coupled with a propensity to experience negative emotions likely transitioned into self-hatred, depression, and eventually self-destructive behaviour. Fear of rejection transitioned into interpersonal suspiciousness and paranoia. He believed that you have developed a hostile attribution bias whereby you interpret ambiguous events or behaviours directed at you through an overly negative or hostile lens. He believed that your paranoia was likely further exacerbated by your methylamphetamine abuse.
Dr Sellbom then considered whether your mental condition was such as to make available to you a defence of mental impairment or of diminished responsibility. It was his opinion that you did not suffer from a mental impairment at the time of the offence, in the sense that you did not suffer from a major mental illness. He said that although you clearly exhibited significant and impairing mental health problems, including seriously impairing emotional dysregulation, depression, anxiety and substance abuse, this did not reach the level of impairment to rational thinking required for a major mental illness.
It was Dr Sellbom’s opinion, that at the time of these offences you suffered from an abnormality of mind that substantially impaired your mental responsibility for your acts. He thought that you were extremely emotionally dysregulated to a degree that you were exhibiting a stress induced depersonalisation or dissociative event that caused you to lose self-control while still maintaining awareness of your behaviour. He expressed the opinion that this loss of control had deprived you of the ability to form the necessary intention for the crime of murder. He said that your uncontrollable rage, while probably fuelled by your anger concerning the issues at hand, was highly likely exacerbated by your chronic steroid abuse. This last opinion is important, as Dr Sellbom’s opinion is based upon your abnormality of mind being the product of a combination of your personality disorder and the effects of your steroid abuse. It was this combination that produced what he called your extreme emotional dysregulation.
Dr Sellbom said that your severe emotional dysregulation was evidenced by the following:
(a)your long-standing history of emotional dysregulation and interpersonal sensitivity as reported by you, your mother and sisters and supported by psychological testing and mental health records;
(b)that during the day of these offences, you re-experienced significant interpersonal trauma that led to a progressively deteriorating emotional state. This was evidenced by your conversations with KH and observations by Ms Rixon, in addition to your own report;
(c)that on 28 February 2015 you wanted to end your life. You perceived that you had lost your family and children. Dr Sellbom stated that suicidal ideation is consistent with KH’s fears on the day, as well as your historical responses to severe emotional reactions; and
(d)Ms Rixon’s observations during the telephone call immediately prior to the offences.
Dr Sellbom expressed the opinion that the “resulting dissociative experience and thus lack of premeditated desire to kill” was “evidenced” by the following:
(a)scientific research has indicated that severe, stress induced negative emotional states can lead to transient episodes of severe dissociation;
(b)your self-reported experience at the time of the offences is consistent with dissociation;
(c)the observations of Annie McQualter, a psychologist at the AMC, made during an induction assessment on the morning of 1 March 2015, that there was “clear evidence of disordered thinking” and that you were “having difficulties recalling the events of yesterday”. In fact, as Dr Sellbom acknowledged in his oral evidence, these observations were not made by Ms McQualter, but were recorded by a mental health nurse in the AMC medical record at the time of the induction assessment;
(d)your reported statements to various mental health staff on 2 March 2015 that you were “raging when this happened, like nothing before” and “I knew what I was doing, but couldn’t stop. I was in a fucking rage”;
(e)Ms Rixon’s observation of uncontrollable screaming and incoherent expression during a telephone call immediately prior to the offences;
(f)the comments of several witnesses concerning your behaviour after these offences, including one who said that you “did not appear to be with it”, and others who observed you to be screaming uncontrollably for 10 to 15 minutes;
(g)you engaged in what Dr Sellbom considered to be atypical offending behaviour, including not making any attempt to flee the scene, returning to the house to check on the victim, making an immediate confession to the police, and becoming extremely distressed when realising what you had done; and
(h)that you reported that you purchased the axe at Bunnings with the intention of destroying your furniture, and that you said that had you intended to kill the deceased at that point, you would not have needed to purchase the axe since you had a hatchet in your utility.
At the end of his first report, Dr Sellbom emphasised that his opinions were framed within the balance of probabilities and accepted that there was also evidence that would run counter to his opinion that you lacked the specific intent required for murder. In that regard he noted the statements allegedly made by you to KH which were suggestive of a premeditated desire to harm the deceased. In addition, he noted the statements allegedly made by you to Mr Monahan, but said that “less weight was afforded these latter statements in arriving at the overall forensic opinion, however, as they appeared inconsistent with Mr Rappel’s other statements and general psychological state around this time, there was no formal recording of them, and Mr Rappel strongly denied having made them.”
Dr Sellbom’s second report addressed specific sentencing issues, largely based upon his findings in his first report. It is appropriate that I deal with those findings and opinions before addressing his second report. Before I do so, I will refer to his oral evidence.
Dr Sellbom’s oral evidence
In examination-in-chief, Dr Sellbom expressed the opinion that you attended Bunnings on 28 February 2015 because you wanted to procure materials to commit suicide. When asked what he took into account in forming that opinion, he said “Past historical reactions to the type of emotional trauma that he was experiencing the day of the offences”. When asked what he meant by that, he said:
Yeah, so during the day we heard from Mr Rappel and we also know from other sources, including the text messages that were reviewed, that he was in a very bad emotional state in the sense from Mr Rappel’s perspective he had now lost his family. He had had a DVO placed on him which in his mind meant that he was going to lose access to his daughter, which was something that he values tremendously. He also had received the news from [redacted for legal reasons] that she had every intention of ending their relationship and she was going to leave town. Effectively he would no longer have a relationship with his oldest daughter, as well as his unborn child.
It may be accepted that in giving this answer Dr Sellbom was effectively saying that he believed you were under emotional stress at the time. It is not clear what he meant by “past historical reactions”. Dr Sellbom went on to give the following reasons for his opinion that you had gone to the Bunnings store with the intention of procuring something to end your life:
And it is my opinion that if he was so possessed by rage, for lack of a better word, at the time of for instance receiving the DVO that he decided “I am going to kill Ms Costigan” he could have driven directly to her house and ended her life right there and then. He did not need to actually go to buy an axe at Bunnings warehouse. I believe that he is going to Bunnings warehouse is actually more consistent with the stated purpose of going there to procure materials to end his life, something that he has done several times before in his life when he has been exposed to this type of emotional trauma. He had multiple weapons in his car that could have been used. Mr Rappel is a large, strong man. He was using anabolic steroids. He could have killed Ms Costigan without any axe from Bunnings warehouse.
I have little difficulty in accepting that you were in a poor emotional state on the afternoon of 28 February 2015. It may well be that you believed that your relationships with both the deceased and KH had broken down such that you would have little access to your children in future. Objectively, it appears to me that such was not the case, and that both KH and the deceased were willing to facilitate access for you to your children. I accept the evidence of Dr Sellbom, on the balance of probabilities, that you were not thinking rationally about those matters on the afternoon of 28 February 2015. Why you were not thinking rationally is a matter I will address in a moment. I am not, however, prepared to receive Dr Sellbom’s opinion as to your purpose in attending the Bunnings store and purchasing the axe as expert evidence of the facts asserted. An expert witness is a person who has demonstrated that they possess specialised knowledge relevant to a matter in issue, and based upon their training and experience. A psychologist may well possess specialised knowledge based on training and experience concerning aberrant human behaviour, but that does not extend to determining which of a number of possible motives acted to motivate a person to act in a particular way. To put it bluntly, Dr Sellbom is a psychologist, not a mind reader.
Dr Sellbom does not assert that you were incapable, by reason of mental impairment or abnormality of mind, of forming an intention to kill Tara Costigan or of deciding to purchase the axe for that purpose. I do not accept that his training or experience, as considerable as they may be, permit him to give an expert opinion about your motive for attending the Bunnings store or purchasing the axe. His reasoning is based upon a mundane inference – you did not need to buy the axe to kill the deceased because you already had an implement available to you that you could have used for that purpose. This inference is not based upon any expertise Dr Sellbom may possess as a psychologist. I do accept his opinions about your mental state at the time are relevant to determining these issues, but I reject the proposition that he is able to give expert testimony of your motive for these acts.
Dr Sellbom gave evidence that you became fixated on retrieving your furniture from the home of the deceased, and that this was due to a perceived injustice that she had your furniture and you wanted it back. Dr Sellbom expressed the opinion that you were very angry about what you considered to be injustices against you. He expressed the opinion that as you were driving backwards and forwards along the road in front of the deceased’s residential complex, you were progressively “de-compensating” and entering a rage state. He identified a number of factors that led you to be in such a state. He referred to your lifelong emotional instability that has led to maladaptive behaviour, maladaptive feelings and emotional distress. You were also quite angry because of perceived injustices against you. In addition, Dr Sellbom said, you had been abusing anabolic steroids and it was highly likely that you were suffering from the withdrawal effects associated with methylamphetamine abuse. He noted that all of your family members commented that there had been a recent escalation in your anger and irritability.
Importantly, Dr Sellbom said it was impossible to say to what extent steroid abuse contributed to your diminished state of psychological functioning on 28 February 2015. He did, however, give an opinion that you would not have been as susceptible to that type of aggressive state had you not been abusing anabolic steroids. He went on further to say that in his opinion you would not have entered the level of rage state and disassociation that he referred to in his report had you not been abusing anabolic steroids. In forming that opinion he took into account your past history, and in particular the fact that you had been extremely angry in the past with other individuals but you had never engaged in this type of violence. He said that it was his opinion that the anabolic steroids “certainly had a tremendous effect” on the type of rage that you experienced at the time of these offences.
Dr Sellbom considered that your level of communication demonstrated in the text messages, especially within the last hour leading up to these offences, was quite incoherent. With respect, I do not entirely agree. Certainly, it appears that some of the text messages sent by you were incomplete, and others were quite laconic. However it appears to me, to a large degree, that you were capable of understanding the messages you received, and making coherent responses. In determining the extent to which your mental state may be inferred from these communications, it should also be remembered that for much of this time you were also driving a motor vehicle, making text message communication more difficult.
Dr Sellbom was then taken to the evidence of Mr Monahan, and asked how that evidence may affect his opinions. Dr Sellbom said:
Well, I absolutely considered the statements because they’re important. They also appear quite inconsistent with the types of other things he was saying at this time to other staff during his induction assessment. It would be inconsistent with his emotional state at the time of the offences. It is inconsistent with the type of behaviours that he was engaging in immediately after the offences.
In this extract, Dr Sellbom is clearly expressing personal doubt about whether you made the statements to Mr Monahan as Mr Monahan alleged. It is not clear what Dr Sellbom was referring to when he said that the statements alleged by Mr Monahan to have been made by you were “quite inconsistent” with the types of other things you were saying at the time to other staff during your induction assessment. It is also unclear on what basis he considered that the statements reported to have been made by you to Mr Monahan would be inconsistent with your emotional state at the time of the offences except, perhaps, to the extent that it would be inconsistent with his opinion that you were experiencing a dissociative episode at the time of these offences. It is also unclear on what basis he suggests that these statements were inconsistent with the type of behaviour you engaged in immediately after the offences. I note that the statements you made to Mr Monahan are consistent in their tenor with what you admittedly said to police during the forensic procedure.
Dr Sellbom was then asked whether he could explain the making of these statements to Mr Monahan, assuming that they were made. He said:
Well, Mr Rappel was very angry with himself in terms of what he had done. He made multiple statements to induction assessment staff following the offences that he wanted to die. He was telling a number of mental health staff that he wished that other offenders would kill him. He made statements to the effect that he wishes the correctional officers would simply open the door to his cell so that other offenders could come in and murder him because that is what he deserved given what he had done to Ms Costigan. So given those types of statements, the fact that he was quite self-punitive, he wanted to die, he felt he deserved to be punished for what he had done, in the hypothetical scenario that he has indeed said these things to Mr Monahan and if that is accepted by the court, then I would say that he would have made the statement in a highly self-punitive manner; that essentially this would – it would punish him.
This is pure speculation on the part of Dr Sellbom, and is an explanation not embraced by you. When you gave evidence you simply denied having made the statements to Mr Monahan. The hypothesis raised by Dr Sellbom is therefore not consistent with your sworn testimony. It was always open to you, if it were indeed the truth, to accept that you did make those statements to Mr Monahan, and to testify that they did not truly reflect your feelings about what you had done, or reflect your state of mind at the time that you killed the deceased. This you did not do. The hypothesis raised by Dr Sellbom requires me to accept a proposition which you have implicitly rejected in your sworn testimony. In my opinion the most that can be said about any apparent inconsistencies in statements made by you in the days following the murder is that they reveal ambivalence about your attitude to the deceased and to what you had done. This is consistent with a growing realisation of the reality of what you had done mixed with continued bitterness towards the deceased as the person responsible, in your mind, for your problems.
Later in his evidence, Dr Sellbom said you do not suffer from any psychiatric condition which leaves you incapable of feeling remorse or contrition. He went on to say that he had a high degree of confidence in his opinion that you feel a tremendous amount of remorse for your actions. I do not accept that this second assertion, that you feel a high level of remorse for your actions, is a matter on which Dr Sellbom can give an expert opinion.
In concluding that you suffered a dissociative state at the time you committed these offences, Dr Sellbom clearly relied on your description to him of your mental state at the time that you committed them. I have already found that you are not a credible witness based on the lies that I am satisfied you told in your evidence. I also accept the evidence of Mr Monahan about the conversations you had with him in March 2015, the contents of which militate strongly against any suggestion that you were unable to control your actions when you committed these offences. As I have already said, I also accept that when you spoke to KH at the police station in Civic on 28 February 2015 you made a comment, albeit expressed in a joking way, which suggests the thought of killing the deceased had occurred to you, and that such a thought was raised by the deceased obtaining a DVO against you. You then made a clear threat to kill the deceased at the service station in Queanbeyan.
I do not accept your evidence of your mental state at the time that you committed these offences to the extent that you suggest that you could not control your actions. I also do not accept the description of your mental state that you gave to Dr Sellbom to the same extent.
Dr Sellbom referred to evidence other than the description which you gave to him of you mental state that suggested you were suffering a dissociative episode when you committed these offences. He was not asked whether he would have reached the same conclusion without taking into account your description of your mental state, and it cannot be assumed that he would have reached the same conclusion without that material. Indeed, it seems to me impossible for him to have done so. I will, nevertheless, consider the other evidence referred to by Dr Sellbom on this issue.
Dr Sellbom referred to scientific research which has indicated that severe, stress induced emotional states can lead to transient episodes of severe dissociation. This is a matter well within the expertise of Dr Sellbom, and I accept this evidence. The fact that such emotional states can lead to dissociation, however, cannot by itself establish that you were in such a state when you committed these offences.
Dr Sellbom also referred to the AMC records which suggested that a nurse observed “clear evidence of disordered thinking” on your part at the time of induction into the AMC. As I noted in my earlier decision concerning the admissibility of the evidence of Mr Monahan, it is unclear what was encompassed by this observation, and as such it is unclear what significance it may have in any diagnosis of a dissociative state on 28 February 2015.
Dr Sellbom also relied on statements said to have been made by you to various mental health staff on 2 March 2015 that you knew what you were doing, but you could not stop, and that you were in a rage. These comments are, of course, self-reported, but I accept that they may be given greater weight because of their proximity to the offences themselves. It must be accepted that this evidence is capable of supporting Dr Sellbom’s opinion. It is not uncommon for offenders who commit violent offences to say that they were so angry they could not control themselves, but this does not mean that they were in a dissociative state. What is of some significance, I think, is that there is no record of you describing on 2 March 2015 your mental state on 28 February 2015 in the same terms as you described it to Dr Sellbom, as “like an out of body experience” and that you never wanted to kill her.
Dr Sellbom also relied on Ms Rixon’s observations of you during her telephone conversation with you immediately before these offences. I accept that this evidence is also capable of supporting Dr Sellbom’s opinion. The evidence is also consistent with other explanations, such as you having worked yourself into a rage over the perceived injustice to you of the deceased having obtained the interim DVO, one aspect of which was to deprive you of immediate access to your property, and which you believed had caused the breakdown of your relationship with KH. The fact that you were in a rage, a state of extreme anger, does not of itself establish that you were experiencing a dissociative event when you killed the deceased,
Dr Sellbom also relied on observations of your conduct after you committed these offences as supporting his opinion. I again accept that this material is capable of supporting his opinion, but it is not only consistent with his opinion, and nor does he suggest it to be. It is not uncommon for those who kill in anger to quickly repent their act, or simply be emotionally overwhelmed by what they have done. It is one thing to contemplate killing another human being with an axe, it is another thing to have to confront the reality after having done it. I make the same comments with regard to what Dr Sellbom described as your “atypical offender behaviour” after the offence, but I would add that there was little point in you trying to flee after the killing as you committed these offences in front of numerous witnesses, all of whom knew you and could identify you. It is arguable that an attempt to flee in the circumstances would have been stronger evidence of mental impairment as being evidence of an irrational action on your part. I also observe that when police arrived you made no attempt to threaten or antagonise them so as to provoke them into killing you, as you told Dr Sellbom was your intention when you bought the axe. Because this was after you killed the deceased, and for the same reasons which I just mentioned, being the possibility of you feeling some remorse or being emotionally overwhelmed by what you did, I do not place great weight on this immediate post-offence conduct in determining your pre-offence state of mind.
Dr Sellbom also placed weight on your assertion that you purchased the axe, not to kill the deceased, but to destroy your furniture, and that had you wanted to kill the deceased you could have simply used the hatchet that was already in your car. The first of these assertions, of course, depends upon acceptance of the truth of what you told Dr Sellbom. Whether you were telling the truth is not a matter within the professional expertise of Dr Sellbom. With regard to your statement to Dr Sellbom that you already had a hatchet available to you that you could have used to kill the deceased if that had been your intention, I accept that this is a matter which must be considered when determining why you purchased the axe and why you then attended the deceased’s home. I do not accept, however, that the availability of the hatchet to you on 28 February 2015 of necessity establishes that you purchased the axe and attended the deceased’s home in order to destroy your furniture. I accept that an axe, as a more massive implement than a hatchet, would be capable of applying greater destructive force, but seeking out an implement capable of applying a greater destructive force than a hatchet is not consistent only with an intention to destroy your furniture. On your own version of events, you could not know who may be present in the home of the deceased when you planned to go there on 28 February 2015. If you were intent on killing the deceased, you could not know how many blows you would be able to deliver to her before you may be physically restrained. An axe would be capable of inflicting far greater injury to the deceased with fewer blows that a hatchet, and its use would be more likely to deter others from trying to restrain you. You could also not know how many barriers, such as internal doors, would need to be overcome to reach the deceased. The purchase of the axe is perfectly consistent with premeditation on your part to kill the deceased.
I accept that in formulating an opinion as to whether you suffered a dissociative event on 28 February 2015, Dr Sellbom would be entitled to consider the evidence as a whole. I have examined each of the matters referred to by Dr Sellbom separately because that is the only way in which I can meaningfully assess the material he took into account, but in doing so I do not suggest that each of the circumstances referred to by Dr Sellbom must, by itself, be capable of establishing his opinion. The fact remains that we cannot know what Dr Sellbom’s opinion would have been if your description of your experience of your mental state, and those matters which fell outside his professional expertise, had been excluded from his consideration.
Findings of Disputed Facts
Before proceeding any further, it is appropriate to record my findings of fact on particular contentious issues. I am satisfied that on 28 February 2015 you became angry with the deceased because she obtained an interim DVO against you, one effect of which was to temporarily prohibit you personally attending her home to collect your personal belongings. You considered this to be unjust as you did not accept that you had done anything to warrant the making of such an order. I am satisfied that it was the order itself, rather than the temporary deprivation of access to your property, that was the focus of your anger. I will give my reasons for being satisfied of this matter.
All of the contemporaneous text messages demonstrated a willingness on the part of the deceased to return your property. When the Crown put to you, that the deceased in a text message on 26 February 2015 offered to return your property, your response was “Finally. Big deal. It doesn’t matter anymore, that sort of thing”. This dismissive response was inconsistent with the focus of your anger on 28 February 2015 truly being on your inability to obtain your property from the deceased.
You were advised by Constable Soloman when you were served with the interim order on 28 February 2015 that you could apply for a variation of the order to allow you to attend the deceased’s home personally to collect your property, so I am satisfied that you knew that any restriction on access to your property by you personally collecting it was temporary. You also ignored offers by your sister during the afternoon of 28 February 2015 to organise to collect your property on your behalf, which is inconsistent with the focus of your mind at that time being on your property.
At 3.09 pm you sent a text message to your sister Jackie saying “Tara made it so I can’t even go there with police to retrieve my things. It’s spite from her”. At 3.11 pm you sent a further text message to your sister saying “If you contact her I can speak to you”. It appears that your sister accepted your suggestion that she contact the deceased, and at 3.23 pm your sister responded “She said she really didn’t want to do it and if you stop being nasty she will remove it. It’s really up to you. Why didn’t you get your things? I thought mum was organizing (sic) that. When do you want them and I’m sure we can organise it”. I will interpolate at this point to observe that the “it” referred to is clearly the obtaining of the interim DVO by the deceased and the “she” referred to is clearly the deceased. At 4.06 pm your sister again texted you saying “I’ll get it for you”, clearly referring to your property. At 4.07 pm she sent you a further text message saying “When do you want it? I can organise”, again, clearly referring to your property. These last two text messages clearly refer to an offer by your sister to organise retrieval of your property from the home of the deceased. At 4.08 pm you responded in an apparently incomplete text message saying “Your (sic) not allowed to that is why she is”.
It is difficult to determine whether, at this time, you had a genuine belief that your sister was not permitted by the terms of the interim DVO to arrange retrieval of your property from the home of the deceased. Certainly, you were willing to encourage your sister to contact the deceased in your text at 3.11 pm in connection with your property. There are other reasons why you may have wanted to dissuade your sister from contacting the deceased at or after 4.08 pm other than a belief that the interim DVO precluded your sister from arranging for the retrieval of your property. While I acknowledge that there is no evidence of complete synchronicity between the time recording device which recorded the times that the text messages were sent and the time recording device which recorded the time when you purchased the axe, it is very clear that by 4.08 pm you had purchased the axe and you were driving up and down the street in front of the complex containing the deceased’s home. You were becoming increasingly angry and agitated. Ignoring your sister’s offer to obtain your property is consistent with you having, sometime after 3.11 pm finally formed the intention of killing the deceased.
After you killed the deceased and were arrested by police, you were subject to a forensic procedure. During the course of that forensic procedure you said “When a woman falsifies information to obtain an AVO to keep you from your child she’s playing a very fucking dangerous game. Especially when the guy’s not right in the head. I think you guys hand AVO’s out a little bit too fucking easy. I’m sure more people have been killed because of AVO’s...” In my opinion, this comment is particularly revealing about your motive for killing the deceased and strongly supports the finding that you felt a sense of injustice that the deceased had obtained an interim DVO against you. I also have no doubt that you blamed the deceased for the breakup of your relationship with KH, because it was the contents of the application for the DVO that led her to conclude that you had lied to her about your continuing relationship with the deceased, which would have heightened your sense of injustice about the interim order. Your references to not being able to retrieve your furniture by reason of the orders were simply an expression of your perception of the injustice of one aspect of the greater injustice, the obtaining of the interim order by the deceased.
You asserted that you went to the Bunnings store to purchase a hose for the purpose of killing yourself. I am not satisfied on the balance of probabilities that this was the case. The only evidence for this came from you, and you were not a credible witness. It is true that you made statements earlier to KH implying that you were contemplating self-harm, but the evidence shows that you have a history of making similar manipulative threats. There was evidence of you attempting suicide when you were 18 years old, some 20 years prior to these offences, but little evidence of any subsequent suicide attempts. KH gave evidence that you had a history of threatening suicide.
(citations omitted)
I do not advocate a “but for” approach to proof of causation between offending, drug use and mental impairment, but it is worthwhile noting that Dr Sellbom did not express an opinion as to whether the present offences could have, or would probably have, occurred by reason of your steroid abuse even without your underlying personality disorder. It is probable that this would be simply speculation in any event.
To summarise at this point, at the time you committed these offences you had an underlying personality disorder which made it more difficult for you to regulate your emotions, and in particular anger, than a person without such a disorder. You had, nevertheless, demonstrated over many years that you were capable of controlling your anger and your actions when you were angry. At the time you committed these offences you were affected by the use of illicit steroids and to a lesser extent by the use, or the effects of withdrawal from use, of methylamphetamine. To the extent that the expert evidence casts any light on the interrelationship of those circumstances as involved in a causative sense in your offending conduct, it appears from the evidence of Dr Sellbom that the use of illicit steroids was most significant. Any mental impairment arising out of your use of steroids does not reduce your moral culpability, because you knew that you already had a problem with controlling your anger, and you knew that the use of steroids made it more difficult for you to control your anger. The evidence does not support a finding that your personality disorder had any real or sufficient connection to your offending to warrant a conclusion that your moral culpability for these offences is thereby diminished.
Dr Sellbom expressed the opinion that by reason of your mental impairment there should be a reduction in the weight given to general deterrence in sentencing you for those offences. I do not accept that proposition. First, it is not within Dr Sellbom’s field of expertise to express an opinion as to how the existence of a mental disorder at the time of offending should affect the requirements of sentencing. Secondly, the same problem exists in this opinion as was demonstrated regarding his opinion as to your moral culpability: Dr Sellbom’s reference to your mental impairment is a reference to the aggregate effect of your personality disorder and your drug abuse. If it were demonstrated that there was a sufficient causal relationship between your personality disorder and the present offences, then Dr Sellbom’s opinion may well be correct, even if it is beyond the boundaries of his expertise. I am not satisfied that the necessary causal relationship has been established.
Dr Sellbom expressed the opinion that your mental health is unlikely to be adversely affected by imprisonment. This is an opinion well within his area of expertise, and I accept it.
It was Dr Sellbom’s opinion that your “mental impairment exhibited at the time of the offences” is not a continuing one. It should be noted that in this regard Dr Sellbom is referring to the aggregate effect of your personality disorder and the effect on you of illicit drugs as the relevant mental impairment. I do not understand Dr Sellbom to suggest that your personality disorder is not a continuing condition, but rather that the steroid and methylamphetamine abuse that you engaged in is not necessarily a continuing consideration. I accept that you are unlikely to reoffend in a similar manner if you do not abuse illicit drugs, and particularly steroids, in the future. Your history shows that you are capable of controlling your anger, and your actions when you are angry, when you are not drug affected, despite your personality disorder.
Dr Sellbom understandably found it difficult to predict the level of future risk that you may pose to the community bearing in mind the likelihood that you will spend many years in custody before any possible release. He did note that you do not exhibit some of the more potent risk factors for future violence, including repeated past incidents of violence. As I said earlier, I am satisfied that you are unlikely to reoffend provided you do not return to the use of illicit drugs, and particularly steroids. Your risk factors for future offending, as identified by Dr Sellbom, include your proclivity to anger and your past substance abuse. Both of these, he believes, can be treated, although it would be important to reassess your progress and attitudes over time.
Victim Impact Statements
A number of victim impact statements were read or tendered at the sentence hearing. Mr Michael Costigan, an uncle of the deceased, spoke of the way your actions had a “ripple-effect” upon the extended family and noted that they are all victims. In relation to the personal effect, he said that as a result of your actions, he felt that he needed to return to Australia to look after his extended family. This meant that he had to leave his wife and daughter in Asia as well as pausing his overseas business. Ms Margaret Costigan, the grandmother of the deceased, spoke of her close bond with her granddaughter, raising her from when she was three weeks old. She spoke of your actions as indescribable and of the pain she feels of having to live without the deceased.
Ms Rikki Schmidt, the sister of the deceased, spoke of her strong bond with her sister and her difficulty in dealing with her death. She spoke of feeling unsafe in her own home and of nightmares, and of her panic attacks at the thought of having to go to court. She also spoke of the physical effects of your actions, suffering a fractured pinky finger along with tendon and nerve damage as a result of being hit with the axe.
The victim impact statement of Mr Nathan Costigan, a cousin of the deceased, spoke of the impact of her death upon both the extended family as well as himself. He described how the death of the deceased affected his mindset when it came to safety in his own home and his need to defend his family and himself. Ms Bianka-Jayne Costigan, another cousin of the deceased, described how she had been pregnant at the same time as the deceased and how they ended up having their babies only two days apart. She spoke of how her cousin’s death placed her in a place of heaviness and anxiety, and of her feelings of guilt when looking at her young son when the deceased was unable to do the same. She also spoke of the effects of her death on her other children, with her daughter recently being diagnosed with a number of emotional disorders. These effects were also echoed by Bianka-Jayne Costigan’s husband, Mr Kale Dyson, in his victim impact statement.
Ms Jaemi Costigan, a cousin of the deceased, spoke of how her grief and anxiety meant that she now pushes people away and is unable to control her emotions. She echoes other statements in how the death of her cousin has not only affected a few individual people but the entire family and everyone surrounding them. She said that she feels sad and questions why someone so beautiful was taken away without having a choice. The victim impact statement of Ms Maria Costigan, an aunt of the deceased, also speaks of how your actions have changed the lives of her entire family. She speaks of the deceased as playing a huge part in the extended family as well as in her large circle of friends and work colleagues. She also speaks of the guilt she feels for not protecting her niece as she promised the deceased and her late father.
Lastly, the victim impact statements of the children of the deceased speak of their love towards their mother, how they miss her and wish they could still be with her. They speak of her being the best mum in the world and of wanting to put her in the “world’s best mum competition”. The statements speak of their nightmares and how much they worry and hurt. They also speak of how sad they are, how things are never going to be the same and how their one wish would be to have their mum back with them.
Consideration
The Crown submitted that I should impose the maximum prescribed penalty for the offence of murder, being imprisonment for life. It is a well recognised legal principle that the maximum penalty is only to be imposed where a particular case falls within the category of the worst cases of its type. That is not to say that in order to justify imposition of the maximum penalty a case must be the worst of its type imaginable, because human ingenuity can always conjure up a worse case. The proper approach is that expressed by the NSW Court of Criminal Appeal in R v Twala, an unreported decision of 4 November 1994, and cited with approval in R v Harris [2000] NSWCCA 469; 50 NSWLR 409 and Burrell v The Queen [2009] NSWCCA 163; 196 A Crim R 199 (Burrell v The Queen). In order to characterise a particular case as coming within the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime, as distinct from the subjective features mitigating the penalty to be imposed.
In Burrell v The Queen, the Court cited at 249, with approval the statement by Hunt CJ at CL in R v Arthurell, an unreported decision of the Supreme Court of NSW of 3 October 1997, that “heinousness” in that respect means “atrocious, detestable, hateful, odious, gravely reprehensible and extremely wicked”. The present case exhibits a number of features that deserve these descriptors:
(a) firstly, there was a degree of premeditation and planning involved in the offence. Your statement to KH just after 1.30 pm on 28 February 2015 indicates that you contemplated killing the deceased at that time. The threat to kill the deceased which you made to KH at the service station just after 2.30 pm reveals a crystallisation of that thought into purpose. You then purchased an axe for the purpose of killing the deceased. You subsequently drove to her house, armed with the axe, for the purpose of killing her;
(b) secondly, at the time that you forced entry into the deceased’s home, her two sons were present and you killed her in front of them with two blows of the axe. I am satisfied that at the very least you knew that it was very probable that the deceased’s sons would be present in the house with her, but you were indifferent to that fact.
(c) thirdly, at the time you killed the deceased she was holding her infant daughter BD. I am satisfied that at the very least you were aware of the real possibility that the deceased would be holding BD, or would be in her close proximity, but you were again indifferent to this possibility;
(d) fourthly, you killed the deceased in her own home, after using force to break into her home in order to kill her;
(e) fifthly, you obtained and used a weapon calculated to cause severe, and indeed horrific, injuries to the deceased; and
(f) finally and most importantly, your motive for killing the deceased was to punish her for applying for a DVO and obtaining an interim DVO against you.
The clear legislative purpose behind the Domestic Violence and Protection Orders Act 2008 (ACT) is the protection of members of the community from domestic violence. It is a truism that it is mostly women who require such protection. The Domestic Violence and Protection Orders Act 2008 (ACT) provides a mechanism whereby those who claim to have been the subject of domestic violence may seek the protection of the community, including protection while any dispute about the application of the Act is resolved. By invoking the protection of the Act, and obtaining an interim order, the deceased was entitled to the protection of the law. For many years now, the courts of this country have spoken of the need to protect members of the community, and particularly women, from domestic violence, and the need for courts to take seriously offences of domestic violence. If these statements are to have meaning, if the protection offered by the Act is to have significance, it is incumbent on courts to recognise the heinousness of offences of violence committed in retribution for a member of the community invoking the protection provided by the Act. It is no answer to say, as you do, that you deny the allegations made by the deceased in her application for a DVO. The Act prescribes a procedure for independent resolution of such disputes in a calm and civilised forum. It is, if anything, an aggravating circumstance that you, having been told and knowing of the availability of a forum to challenge the application, or to seek a variation of the interim orders, chose to ignore the civilised option and instead opted for a shameful and cowardly barbarism.
It will be apparent from what I have said that I consider your moral culpability to be high. I am not persuaded that any impaired mental functioning you experienced on 28 February 2015 was, in any real sense, connected with your personality disorder. I am not satisfied that your personality disorder acted upon you on 28 February 2015 such that either specific or general deterrence should be moderated or eliminated as a sentencing consideration. I am not satisfied that the Verdins principles have any application to the circumstances of these offences.
In my opinion, the objective circumstances of the present offence of murder place it within the worst category of cases of murder, and would warrant a term of life imprisonment. The question is, whether there are any circumstances of sufficient cogency to call for the imposition of a lesser penalty.
I accept that you are, to a degree, remorseful for what you have done, and that you have expressed remorse to your family and others. This fact is not sufficiently cogent to warrant the imposition of a sentence less than life imprisonment. The same may be said with regard to your prospects for rehabilitation.
The one matter of substance which could justify a lesser sentence than life imprisonment for this offence of murder is your plea of guilty. A plea of guilty, especially an early plea of guilty, may evidence remorse on the part of an offender. Demonstrated remorse may reduce the need for general deterrence in sentencing, and may also be relevant to an offender’s prospects for rehabilitation. By virtue of s 35(4) of the Crimes (Sentencing) Act 2005 (ACT) I am not to allow any significant reduction in sentence for suggested remorse based upon a plea of guilty where the Crown case is “overwhelmingly strong”. That is an apt description for the Crown case against you. The only real issue concerned your psychological state at the time you committed these offences, and whether that may provide you with a defence to the charges, or significantly reduce your moral culpability. You accepted that your psychological state provided no defence to the charges, and I am satisfied that it did not significantly reduce your moral culpability. The case against you was, in truth, overwhelmingly strong.
A plea of guilty may also be taken into account in mitigation of penalty in another way; it may have a utilitarian value and may evidence a willingness to facilitate the course of justice. Cases such as R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 380; and R v Perry [2006] NSWCCA 351; 166 A Crim R 383 suggest that the utilitarian value of a guilty plea is the more significant component of any reduction in sentence for a plea of guilty. An early plea of guilty, evidencing remorse and having utilitarian value by saving the community the cost of a trial and sparing witnesses the need to give evidence, may attract a discount on a determinate sentence of around 25 per cent. Pleas entered at a late time in the prosecution, or having limited utilitarian value, will ordinarily attract a lesser reduction in sentence.
There are cases in which it may be appropriate to withhold a discount on sentence because of a plea of guilty, including cases where it is necessary to protect the public from the offender, and where the objective gravity of the offending is so great that the considerations of punishment and deterrence substantially outweigh the public interest in encouraging guilty offenders to plead guilty. Such cases can be described as “the worst of the worst”, because it is clear that a case may fall within the category of a worst case, as that term was used by the High Court in the recent case of R v Kilic [2016] HCA 48, and yet attract a discount on sentence for the utilitarian value of a plea of guilty.
While the case against you was overwhelmingly strong, you are still entitled to a discount on the otherwise appropriate sentence to mark the utilitarian value of your pleas. As the Court of Appeal observed in Coggan v The Queen [2013] ACTCA 49 “even an overwhelming prosecution case requires an enormous amount of work if it is to be made out in a defended trial”. The community as a whole and the criminal justice system in particular, are benefitted by guilty offenders admitting their guilt and pleading guilty. In our system of criminal justice, an accused person is entitled by right to make the prosecution prove him or her guilty. An offender who pleads guilty saves the community the cost of preparing for, and prosecution of a trial, usually the cost of legal aid representation at a trial, and he or she relieves the witnesses of the necessity of giving evidence and provides victims and others a degree of certainty about the outcome of the charge. Offenders will be less inclined to admit their guilt if there is a perception that their admission of guilt will not be recognised by an appropriate reduction in sentence, to the disadvantage of the community, the criminal justice system, victims and witnesses. While the present offence of murder falls within the worst case category, the evidence does not support a finding that you will inevitably present a danger to others after you are released; nor are there present the types of aggravating circumstances, such as multiple victims, contract killings or the like, that may justify negation of any discount for a plea of guilty.
You were committed for trial to this Court on 15 September 2015, having originally been charged with these offences on 28 February 2015. The proceedings in this Court were adjourned from time to time while you obtained psychological reports. At the time that you entered your pleas to these charges a trial date had not yet been set. Your pleas could not be described as having been entered at the earliest opportunity, but they nevertheless had significant utilitarian value. While any trial of these charges was not likely to be particularly complex, it would nevertheless have been costly, and distressing to the witnesses and family and friends of the deceased.
The need to acknowledge your plea of guilty with respect to the charge of murder requires that I impose a determinate sentence for that offence. The appropriate sentence will inevitably be lengthy, but were it not for your plea of guilty I would have imposed a life sentence. In assessing an appropriate sentence on the basis of a “step down” from life imprisonment due to a plea of guilty, this Court was provided with little assistance. I note that recently, in R v Droudis (No 16) [2017] NSWSC 20, the Court was provided with life expectancy tables to assist in determining an appropriate determinate sentence for an offender where the Crown, as its primary submission, submitted that life imprisonment was appropriate. This may be something for the Crown to consider in other cases.
Turning now to the other offences, the objective seriousness of the offence of contravening a protection order is high. A sentence of imprisonment is called for, but as I have taken account of the circumstances of this offence in determining the objective seriousness of the offence of murder, a large degree of concurrency is called for.
In assessing the objective seriousness of the offence of recklessly inflicting grievous bodily harm, I take into account that a weapon was used and that the offence occurred in the presence of children. The injury inflicted, while amounting to grievous bodily harm, was at the lower end of the scale of such harm. I would assess this offence as in the low to mid range of such offences. While this offence involved a separate victim, it arose from one of the blows with the axe that killed Tara Costigan and as part of the same series of events. A significant degree of concurrency is appropriate.
The offence of assault occasioning actual bodily harm also occurred as part of the same series of events. I would assess that offence as in the lower range of such offences.
Subjective features
A Pre-Sentence Report was not prepared, but your personal circumstances are set out in the reports of Dr Sellbom and in the evidence you gave at the sentence hearing.
You are 42 years old and previously worked as a self employed bricklayer. You have two older sisters. Your parents separated when you were six years old, which apparently had an adverse effect upon you. You reportedly have a good relationship with your mother and two sisters, but your relationship with your father has always been problematic. Dr Sellbom perceived a connection between your relationship with your father as a child and your personality disorder, an opinion I am willing to accept. I take into account Dr Sellbom’s opinion that you suffer from a personality disorder as part of your subjective features relevant to sentencing. I do not accept that your personality disorder warrants any reduction in sentence under the Verdins principles.
You struggled at school and left during Year 10. Your mother and sister Jackie felt that you had the aptitude to perform well academically, but that you were not willing to apply yourself. Your sister felt that you lacked confidence because of your father’s disparaging attitude towards you. After you left school you worked as a labourer before taking up bricklaying and starting your own company. In that capacity you managed employees and secured contracts with builders. You were considered to be reliable and hardworking. You suffered a back injury at age 28 as a result of your work as a bricklayer. This required surgery. You used steroids for a short period which you found helpful with your back. You subsequently stopped the use of steroids, before recommencing their use in 2014.
You report having struggled with depression and social anxiety most of your life. You reportedly contemplated suicide frequently, but only attempted it once. You have seen a number of psychiatrists and psychologists who have treated you for anxiety and depression. You have been prescribed various medications, but you have not always been compliant with prescribed medication because of their adverse side effects.
You have had a number of short and long term relationships. You complained to Dr Sellbom that a number of your partners had lied to you or sought to manipulate you. It is difficult to know to what extent that is objectively accurate, bearing in mind your tendency to suspicion and paranoia, but I accept that you may have believed it to be the case. I accept that you found the breakdown of a number of those relationships to be difficult and emotionally traumatic.
You recommenced the use of anabolic steroids in February 2014, primarily to help with your back during heavy bricklaying work, but also because it helped you with self esteem issues. You claimed that you increased your steroid use in early 2015 to help wean yourself off methylamphetamines. In my opinion it is not mitigatory that you increased your use of one illicit drug in order to wean yourself off another. You told Dr Sellbom that you were becoming increasingly assertive and aggressive while you were using steroids.
I note that you have a limited criminal history. In 2013 you were convicted and placed on bonds in the Narooma Local Court for offences of common assault and stalking. KH was the complainant with respect to those matters. Later that same year you were convicted in the ACT Magistrates Court of an offence of contravening a protection order and placed on a Good Behaviour Order. The complainant was again KH.
The present offence of murder was vicious and cowardly. Those who witnessed your violence will have to live with their memories for the rest of their lives. Your actions deprived three children of their mother, including your own infant daughter BD. You have effectively deprived BD of both of her parents. The effects of your actions will be felt for decades to come. There is a very substantial community interest in retribution, deterrence and punishment. This can only be achieved by a very substantial period of imprisonment.
Sentence
For the offence of murder, I record a conviction and you are sentenced to 30 years imprisonment commencing on 28 February 2015 and expiring on 27 February 2045.
For the offence of recklessly inflicting grievous bodily harm, I record a conviction and you are sentenced to 2 years 11 months imprisonment commencing on 28 March 2043 and expiring on 27 February 2046. But for your plea of guilty I would have imposed a sentence of imprisonment for 3 years 6 months.
For the offence of contravening a protection order, I record a conviction and you are sentenced to 2 years 6 months imprisonment commencing 28 May 2044 and expiring on 27 November 2046. But for your plea of guilty I would have imposed a sentence of imprisonment for 3 years.
For the offence of assault occasioning actual bodily harm, I record a conviction and you are sentenced to 10 months imprisonment commencing 28 June 2046 and expiring on 27 April 2047. But for your plea of guilty I would have imposed a sentence of imprisonment for 12 months.
The aggregate sentence of imprisonment I have imposed is one of 32 years 2 months commencing 28 February 2015 and expiring on 27 April 2047. I will set a non-parole period of 26 years commencing 28 February 2015 and expiring on 27 February 2041. This is the minimum period which you should be required to serve for these crimes, and leaves a period of 6 years 2 months when, if released, you would be subject to parole supervision which is a period more than adequate for that purpose.
| I certify that the preceding one hundred and fifty-six [156] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 30 March 2017 |
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