R v Richardson
[2012] NSWSC 521
•18 May 2012
Supreme Court
New South Wales
Medium Neutral Citation: R v Richardson [2012] NSWSC 521 Hearing dates: 28, 31 October 20113, 4, 7, 8, 9, 10, 11, 14, 15, 16, 17, 1821, 22,23, 24, 25,26, 27, 28 November 2011 Decision date: 18 May 2012 Before: McCallum J Decision: Offender convicted and sentenced to a term of imprisonment with a non-parole period of 21 years commencing on 4 May 2010 and concluding on 3 May 2031 and a balance of term of 7 years concluding on 3 May 2038.
Catchwords: CRIME -murder - sentence after trial - whether offender intended to kill the deceased - treatment of body after death aggravating offence Legislation Cited: Crimes Act 1990
Crimes (Sentencing Procedure) Act 1999Cases Cited: Markarian v R [2005] HCA 25; (2005) 228 CLR 357
Muldrock v R [2011] HCA 39; (2005) 244 CLR 120
R v Isaacs (1997) 41 NSWLR 374
R v Knight (2006) 164 A Crim R 126; [2006] NSWCCA 292
R v Previtera (1997) 94 A Crim R 76
R v Wilkinson (No 5) [2009] NSWSC 432
R v Yeo [2003] NSWSC 315Category: Sentence Parties: Crown
Neal Richardson (offender)Representation: S Huggett (Crown)
G Turnbull SC (Offender)
Office of Director of Public Prosecutions (Crown)
George Sten & Co (Offender)
File Number(s): 2010/8110783 Publication restriction: None
Judgment
Neal Richardson was found guilty by a jury of the murder of Kirrilee Nicole Grant. He now stands to be sentenced for that offence.
At the proceedings on sentence, victim impact statements were provided to the Court from Ms Grant's mother and father. Their statements reveal the devastating impact that Ms Grant's death has had on them and on Ms Grant's daughter, Natasha, who has been in their care since she was two years old. It is important to note that the Court is not permitted in this case to take the victim impact statements into account in determining the sentence to be imposed on the offender, for the reasons explained by Hunt CJ at CL in R v Previtera (1997) 94 A Crim R 76 at 86. The statements received nonetheless afford the Court the opportunity to acknowledge the grief of those who knew and loved Kirrilee Grant.
The maximum penalty for the offence of murder is imprisonment for life: section 19A of the Crimes Act 1900. A standard non-parole period of twenty years is prescribed for the offence under section 54A of the Crimes (Sentencing Procedure) Act 1999. Section 61(1) of the Act mandates the imposition of a life sentence in a case where the Court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence. The Crown did not contend that the present offence falls within the terms of that section. I am satisfied that it does not.
The determination of the appropriate sentence to be imposed is guided by both the maximum penalty and the standard non-parole period. I have had regard to the fact that, in accordance with the Act, twenty years is the non-parole period for an offence of murder in the middle of the range of objective seriousness. As recently explained by the High Court, the guidance afforded by that statutory fact is informed only by reference to the nature of the offending, without reference to matters personal to the offender: Muldrock v R [2011] HCA 39 at [27]; (2005) 244 CLR 120. The offence in the middle range is hypothetical and does not comprehend the range of factors relevant to sentencing in the individual case before the Court: at [31]. Accordingly, contrary to a line of appellate authority preceding the decision in Muldrock, the Court is not required to assess whether the individual offence under consideration is within the mid-range of objective seriousness: see Muldrock at [25] and [29].
It nonetheless remains an important aspect of the sentencing task to assess the objective seriousness of the offence, including consideration of any circumstances personal to the offender that are causally connected to the commission of the offence.
The task is to identify and consider all factors relevant to the sentence (including any relevant aggravating and mitigating factors listed in s 21A of the Crimes (Sentencing Procedure) Act and to make a value judgment as to the appropriate sentence given all the factors of the case: Muldrock at [26], citing Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [51] per McHugh J. The statutory specification of a standard non-parole period is one of the relevant factors but is not to be taken as the starting point in determining the appropriate sentence.
Circumstances of the offence
Ms Grant was killed on the morning of 18 April 2010. Her dismembered body was found almost six months later in plastic bags under a bush. The dismemberment of the body and subsequent decomposition of its remains impeded forensic examination. The Crown acknowledged at the trial that it was unable to establish the precise act or acts causing death.
The offender is the only living eyewitness to that event. He gave evidence at the trial that Ms Grant's death was accidental. They had been in a troubled relationship for some time. The offender said that, during an argument in their apartment, Ms Grant began hitting him. He took hold of her by the arms and tried to push her away in order to defend himself. In doing so, he said, he accidentally stood on her right foot, causing them both to fall. He said that as Ms Grant fell backwards, she smashed her head on a coffee table and died immediately (TS778.30 - TS778.45). He stated that he did not call an ambulance or attempt to resuscitate her because he knew she was dead (T871.44).
The jury's verdict necessarily rejects that account. Consistently with the verdict, the offender must be sentenced on the basis that a deliberate act of his caused Ms Grant's death. However, the evidence does not establish what that act was and I am unable to make any finding of fact on that issue.
As to the offender's intention, the jury's verdict leaves open the question whether he intended to kill the deceased or whether he intended only to cause her grievous bodily harm. The charge was left to the jury on alternative grounds on that issue. The Crown case put at its highest was that the offender had formed the intention to kill the deceased in the days before her death and that the murder was premeditated. Alternatively, it was put that the offender formed an intention to kill the deceased during the evening on which she died, perhaps spontaneously in the course of their argument; alternatively that the offender had no intention to kill the deceased but only to cause her grievous bodily harm.
Accordingly, it is necessary for me to make findings on those issues. My findings must be consistent with the jury's verdict. Beyond that, any finding adverse to the offender must be arrived at beyond reasonable doubt: R v Isaacs (1997) 41 NSWLR 374 at 377. It is necessary for that purpose to consider the evidence as to the offender's relationship with the deceased and the events leading up to her death.
The offender's relationship with the deceased
A great deal of evidence as to the relationship was adduced without objection both by the Crown and by the offender. The offender met Ms Grant in 1997 in a pub at Kings Cross. At that time, he was suffering from depression following the death of his mother and was by his own admission abusing alcohol and marijuana. Ms Grant was also suffering from depression, in part contributed to by the fact that her twin sister had been murdered some years earlier (T717).
The offender and Ms Grant commenced a relationship, initially staying at his late mother's house in Avalon. The offender said that he soon became aware that Ms Grant worked as a prostitute and that she was a regular user of heroin, cocaine, alcohol and prescription drugs (T718.35).
The offender said that he was introduced to heroin in 1998 through Ms Grant, initially to help him sleep, and that he quickly developed an addiction to that drug. At some point the offender and Ms Grant moved out of the house at Avalon. They developed an itinerant lifestyle, staying in hotels and using heroin. The offender stated that he spent his entire inheritance from his mother supporting that lifestyle. He said that he had always intended to commit suicide when the money ran out (T720.15). That happened at the end of 1998. The offender attempted to kill himself by taking an overdose of insulin, a drug to which, as a diabetic, he has ready access. He was hospitalised for about a month and lost contact with Ms Grant during that time.
The offender spent the next few years in assisted housing with a variety of charities. He states that he was able to overcome his heroin addiction in 2002 using the drug buprenorphine. In 2003 he began receiving a disability pension. In 2005 he obtained a housing commission flat in Malabar.
The offender stated that he reconnected with Ms Grant at around that time when he met her by chance on a bus. Their relationship recommenced when she obtained a housing commission flat across the road from him. In 2007, Ms Grant moved in with the offender and relinquished her own apartment.
According to the offender's evidence, they got on "fantastically" for a while (T728.1). Ms Grant successfully completed the methadone programme. The offender was working as a labourer on building sites, and claims that it was he who secured Ms Grant a job as a strapper at Randwick racecourse. They went on several holidays together (T727.45).
However in 2009, Ms Grant lost her job at the racecourse due to an injury. At this point, the offender contends, she was drinking to excess and began "doctor shopping" to obtain prescription medication from many different doctors. He stated that her behaviour became increasingly erratic and unpredictable (T729.50).
The offender admitted that he often helped Ms Grant to obtain drugs during that time by driving her to different doctors or to Kings Cross. However, he stated that he later began to refuse to help and that this caused significant tension and made the relationship increasingly unstable.
Assault charge
On the morning of 23 October 2009, Ms Grant attended Maroubra Police station to make a complaint about the offender. She stated that, during the previous night, he had tied her up with cable ties, jumped on her chest and pulled her clothing, causing her to fall. She also complained that he had taken her wallet.
Ms Grant made a statement as to those events to Senior Constable Brooke O'Connor, who noted that Ms Grant had red marks around her wrists and ankles and was complaining of chest pains. Ms Grant also produced four black cable ties, which Constable O'Connor kept as evidence (T201.37). On 23 October 2009, police executing a search warrant found various items at the offender's flat including a tool box with cable ties of the kind handed to police by Ms Grant at the police station and gaffa tape in the rubbish bin of the kind she said had been used to gag her during the assault.
The offender initially denied any wrongful involvement in the events described by Ms Grant. He was arrested and charged with assault occasioning actual bodily harm. In accordance with standard police practice, Constable O'Connor also applied for and was granted an apprehended violence order (AVO) on behalf of Ms Grant. The AVO initially included a condition prohibiting the offender from having any contact with Ms Grant except through a legal representative.
The offender was refused bail and remained in custody until 30 November 2009, the date initially fixed for the hearing of the charge. However, Constable O'Connor had not been informed of the hearing date in time to locate Ms Grant (who was staying with friends) and so had not been able to inform her of the date or to subpoena her to attend court. The hearing was accordingly vacated until 19 April 2010 and the offender was granted bail.
After the offender was granted bail, he and Ms Grant got back together. He said that she came to his flat and begged his forgiveness for sending him to gaol. I do not accept that evidence. In my assessment, the offender throughout his evidence was inclined to denigrate Ms Grant whilst painting himself in the best possible light in a way that was both narcissistic and unconvincing. Nonetheless it is clear, and I accept, that the relationship was resumed.
The offender and Ms Grant attempted to have the conditions of the AVO varied to allow contact but it appears that was initially unsuccessful, possibly due to an administrative error. In January 2010, the offender and Ms Grant were seen together during a random encounter with police and the offender was arrested for breach of the AVO. The order was then varied, with Ms Grant's consent, so as to allow contact between them.
The evidence of the alleged assault was not admitted as tendency evidence and it is neither relevant nor appropriate for present purposes to determine whether the offender is guilty of that offence. However, the existence of the charge and the impending hearing is relevant to an assessment of the offender's likely state of mind on the night he killed Ms Grant. For that limited purpose, it is relevant to consider the strength of the case against the offender on the assault charge.
At the trial, the offender admitted that he had lied in his initial statement to police when he denied using cable ties on Ms Grant. He gave evidence that an argument had arisen when he had refused to take her to Kings Cross to continue drinking. The offender stated that Ms Grant had become hysterical and had gone to the toolbox in the kitchen and collected cable ties, a pair of scissors, some tape and a sock, so that she could die in a manner similar to her twin sister (T737.40).
The offender admitted that he had then tied Ms Grant up with the cable ties, but maintained that he only did so at her insistence. He denied using gaffa tape to gag her (T794.30), but admitted being angry and shouting statements such as "you don't respect me" and "I'm going to teach you a lesson" (T795.25-30). The offender said that when he tied Ms Grant with the cable ties it "quietened her down" (T794.16). That was an extraordinary moment in the offender's evidence. I do not have any hesitation in rejecting his bizarre account of the events of that night. However, as already explained, it is not relevant for present purposes whether or not he was guilty of the offence. The relevance of those events is confined to their impact on his state of mind at the time he killed Ms Grant.
The Crown submits that, although it is not necessary to establish any motive for the offence, the Court would be satisfied beyond reasonable doubt that, in the days leading up to Ms Grant's death, the offender had a motive to kill her because he feared that she would attend and give evidence at the hearing of the assault charge the following Monday and that he would be sentenced to a term of imprisonment for that offence.
The offender relied on the assault allegation as one in a series of encounters with police which contributed to his fear, after Ms Grant accidentally died in his presence, that he would be implicated in her death and disbelieved as to what had occurred. However, he denied that he had any motive to be rid of Ms Grant. In his evidence at the trial, he stated that the deceased's accusations as to the earlier assault had disappointed but not angered him (T799.33) and that he was always confident she was not going to give evidence against him (T798.24). In order to assess those contentions, it is necessary to consider some further events in the period leading up to the proposed hearing of the assault charge.
Transfer of registration of the deceased's car
The offender stated that his relationship with Ms Grant began to deteriorate in March 2010. Ms Grant began to spend time with another man, Kevin Phillips, and lived intermittently with the offender and Mr Phillips (T759.20- 30).
On 12 April 2010, a week before the assault charge was due to be heard, the offender went to the Roads and Traffic Authority and presented a form to have the registration of Ms Grant's car transferred to him. The transfer form itself was excluded from evidence at the trial as being potentially unfairly prejudicial to the offender: T639 - 646.30 and T683.17. However, there was other evidence in the trial suggesting that Ms Grant was at least a reluctant participant in that transaction, if she was aware of it. Later that week, she complained to a friend that the offender had the car, saying that it was her car and that she wanted it back. She also said that she was worried about the upcoming trial.
The offender gave evidence that he had not really wanted to pay for the car but that Ms Grant wanted $500 to put the car in his name because she didn't want to drive it and because she was sick of getting fines in his name. He also said that she needed the money. I found his evidence on that issue unconvincing.
The Crown submitted that the transfer of the car was against Ms Grant's wishes and supports the conclusion that the offender was planning her murder at that time. Although there is some force in that analysis, I cannot be satisfied beyond reasonable doubt of that fact. There are other reasonable inferences to be drawn as to that transaction. It may have been a genuine transaction voluntarily entered into by Ms Grant, although I doubt it. Another possibility is that the offender was not planning to kill Ms Grant but was planning to prevail upon her to leave Sydney so as to avoid the court hearing without being arrested on a bench warrant to attend and give evidence. On balance, I am not persuaded that I should take the events relating to the car into account in determining the offender's state of mind at the time of the offence.
Subpoena to attend court and give evidence
Ms Grant was served with a subpoena to attend court on 19 April 2010 to give evidence against the offender. On 24 March 2010, Constable O'Connor called her to touch base as to the forthcoming hearing. Constable O'Connor gave evidence, which I accept, that Ms Grant at that point assured her that she would attend the hearing and asked for a copy of her statement.
However in a later conversation on 15 April 2010, the Thursday before the hearing date, Constable O'Connor said Ms Grant sounded more equivocal. The evidence suggested that the offender was probably present with Ms Grant when she received the second call from Constable O'Connor. However, I cannot be satisfied as to that fact beyond reasonable doubt. Plainly, the assault charge could not be prosecuted unless Ms Grant gave evidence at the hearing.
Further assault allegation
By Friday 16 April 2010, Ms Grant was living with the offender again. That evening, she was locked out of their apartment. She went to see her neighbour, June Kavanagh, who described her as being under the influence of drugs and alcohol and stated that her speech was slurred (T244.40). Ms Grant informed Ms Kavanagh that she was coming off drugs and needed to get her medication.
Ms Grant used Ms Kavanagh's phone to call police to assist her to get back into the apartment. She evidently told them during that call that the offender had struck her with a wheel brace. However, by the time they arrived to speak to her, she was so incoherent that an experienced police officer could not understand a word she said. In the meantime, she had also called an ambulance. She was ultimately taken to hospital. She was returned to the offender's apartment in the early hours of 17 April 2010. Police determined that there was no evidence to substantiate the allegation of a further assault and no further charge was laid against the offender. I am satisfied beyond reasonable doubt that those events must have shaken any confidence the accused had as to Ms Grant not giving evidence against him on the following Monday.
Telephone calls to the National Australia Bank
On the night of 17 April 2010, the offender borrowed a mobile phone from another neighbour as his own phone was out of credit. The neighbour gave evidence that her phone was returned by the offender, but was then borrowed again by Ms Grant. Concerned about getting the phone back, she knocked on the door of the offender's apartment demanding its return (T331.10- 331.50).
The neighbour stated that Ms Grant answered the door and told her that she would give the phone back in a minute. The neighbour repeated her demand and Ms Grant appeared at the door again, holding a tissue over her mouth, stating that her teeth were bleeding. She told the neighbour that she was going through a crisis with the offender.
The neighbour also gave the following evidence (T332.20):
Q. You said you saw her with a cloth on her mouth, a tissue on her mouth, did she say if anything had happened to her?
A. She said that he was trying to kill her.
The neighbour had never mentioned that fact in previous statements or interviews with police. During the trial, the accused submitted that the neighbour's demeanour manifested some cognitive difficulties on her part. Mr Turnbull, who appeared for the offender, noted that the police had determined to have a psychologist present as a support person for the neighbour when her original statement was taken. I have considered her evidence with due caution in light of those contentions. In my assessment, the neighbour was a credible and careful historian. The only indication of any vulnerability in her as a witness was when, in the face of a skilful cross-examination by Mr Turnbull, she appeared to recant from the evidence set out above. I am satisfied that her evidence-in-chief was the truth.
Ms Grant and the offender used the neighbour's phone to make several calls to the National Australia Bank. The purpose of the calls was to order a new bank card for Ms Grant, as she had lost her purse.
The recordings of those telephone calls are chilling. They reveal that Ms Grant was at times incoherent, angry, frustrated and distressed. The offender, by contrast, was calm, politely providing the information required by the bank before a new card could be issued.
Significantly, Ms Grant told the bank officer that she needed the new card because she was going away. At several points, when she was asked innocuous details such as where she lived, she became inexplicably distressed and turned to the offender to say how she should answer the question.
The prosecution relied on the telephone conversations as evidence of the offender's premeditation to kill the deceased, contending that he instigated the calls so as to have a means of access to her bank account after her death. The offender refutes those contentions, stating that the decision to order the new card at that time was the deceased's (T857.10) and that she was upset and crying because she was drunk, sad and depressed (T858.10), as opposed to being scared of him.
After listening to the recordings of the telephone calls, I am satisfied beyond reasonable doubt that Ms Grant contacted the bank that night under threat from the accused and that she was in grave fear of harm at his hands at that time. I am further satisfied beyond reasonable doubt that, by the time those calls were made, the offender had formed the intention to kill Ms Grant and was forcing her to make the calls so that he would have access to her bank account after her death.
My conclusion on that issue is reinforced by other aspects of the evidence. I have already referred to my finding that the events of the week leading up to the scheduled hearing of the assault charge must have rattled the offender's confidence that Ms Grant would not give evidence against him. He is astute enough to have gleaned that, if she did give evidence in accordance with her statement to police, the Crown's case against him was strong. Further, it is my assessment that the offender was lying as to why he did not call an ambulance for Ms Grant after she allegedly fell. His failure to do so belies his denial that he intended to kill her.
I have also had regard to what the offender did to Ms Grant's body that night. For the reasons already explained, it is not possible to be satisfied beyond reasonable doubt as to whether any part of what he did was done before she died. I can only proceed on the assumption that he took those steps after her death.
The offender dismembered Ms Grant's body with a circular saw. Where he did so was a matter of contest in the trial. The Crown submitted that it could not have occurred in the offender's apartment, since nobody heard it and the forensic evidence collected by crime scene officers found no evidence of the kind one might expect if that had occurred. I am unable to resolve the anomalies in the evidence in that respect and, on balance, I think I should proceed on the basis that the offender dismembered the deceased's body in his apartment, as he states. However, I do not accept his evidence as to why he did so.
The offender stated that, after Ms Grant died, he panicked because he thought he would be implicated in her death. He admitted that he cut up her body but said that the reason he did so was to enable him to get it out of the apartment without arousing suspicion.
I accept that there was ample reason for the offender to fear that he would be implicated in Ms Grant's death. She had last been seen in his company. He had already been charged with an offence of assaulting her and an offence of breaching the AVO granted to protect her. Only a day earlier, a large number of police had attended his apartment in response to another allegation of assault. However, it does not follow from those events that the offender had no other reason to deal with the body as he did. The object of disposing of the body may have been part of the reason for dismembering it, but other aspects of the autopsy evidence reveal a higher level of criminality.
Some parts of the body had been cut into pieces smaller than can sensibly be explained by the need to fit them into garbage bags. One of the deceased's feet had been cut into two pieces. Both hands had been cut off at the wrist. A little finger had been removed from one of the hands. Both nipples had been cut off, probably using a pair of scissors that were found in one of the bags (T531.45). The front of the skull bore marks indicating that the face had been cut diagonally from right to left and left to right and across the midline of the skull (T535.25).
Those acts weren't beyond what was required to conceal the transport of a body. I am satisfied beyond reasonable doubt that the offender's treatment of the body was in part motivated by a desire to remove evidence of injuries inflicted by him. I am further satisfied beyond reasonable doubt that to some extent at least, the offender's treatment of the body was an expression of anger and hatred towards the deceased. I do not accept that this is merely emotive speculation, as submitted on behalf of the offender. The state of the body admits of no other conclusion, in my view.
As noted by Johnson J in R v Wilkinson (No 5) [2009] NSWSC 432 at [61], whilst care must be taken in examining events after the offence for the purpose of assessing its objective seriousness, circumstances which as a matter of common sense are directly related to the offence are properly regarded as informing that assessment. The offender's treatment of the deceased's body contributes to the overwhelming inference that he intended to kill her.
It was acknowledged on behalf of the offender that his treatment of the body may be taken into account in assessing the seriousness of the offence: R v Yeo [2003] NSWSC 315 at [36]; R v Knight (2006) 164 A Crim R 126 at [28] and [29]; [2006] NSWCCA 292. The offender's meticulous and disturbing dissection of his former companion into smaller parts to be dumped unceremoniously in the bush requires that the sentence be increased to some degree.
A further aggravating feature of the offence is that the offender was on conditional liberty at the time it was committed, having been granted bail on 30 November 2009 for the alleged assault occasioning actual bodily harm. He was also subject to the AVO.
I turn to consider the offender's circumstances and any factors that mitigate the seriousness of the offence. The offender's sustained denial of his guilt removes any basis for a finding of remorse in respect of the murder. The Court was invited to accept that he is remorseful as to the way in which he treated the body (T779.40). I accept on balance that he does at some level regret those acts. That is a slight consideration in mitigation of the appropriate sentence.
I have also taken into account a report prepared by Anna Robilliard, forensic psychologist, tendered on behalf of the offender. Ms Robilliard assessed the offender to have a high score on measures of schizoid, depressive and dependent personality attributes. One of the hallmarks of a schizoid personality is a lack of emotional involvement and responsiveness. I accept that may have impaired the offender's ability to experience or articulate guilt or remorse in the ordinary way.
The offender has a prior matter for common assault against the deceased in October 1997. The offence was proved but no conviction was entered. That is probably of limited significance in the present context. He has some other minor convictions but none of any significance in the present context. He had a relatively privileged and unremarkable upbringing and appears to have had a good work history until after his mother died, when he succumbed to the seductive destruction of heroin.
The offender is not in the best physical or mental health. Ms Robilliard assessed him as suffering to some extent from post-traumatic stress disorder and depression. As already noted, he is a diabetic and there is some evidence from Justice Health (albeit limited) to suggest that he is at risk of heart disease. I have accordingly given some weight to the likelihood that his experience of custody may be more arduous than for a healthy prisoner.
I am not persuaded that the offender has good prospects of rehabilitation. I accept that his offending must be viewed in the context of his difficult and co-dependent relationship with the deceased. However, his elaborate persistence in denying his guilt prohibits any confidence as to his future conduct.
In all the circumstances, I consider that the appropriate sentence for the offence is a term of imprisonment of 28 years with a non-parole period of 21 years and a balance of term of 7 years. The offender has been in custody since his arrest on 4 May 2010. I will fix the sentence to commence on that date. The first date on which he will be eligible for release to parole is 3 May 2031.
Neal Richardson, please stand. You are convicted of the murder of Kirrilee Nicole Grant. For that offence, I sentence you to a term of imprisonment with a non-parole period of 21 years commencing on 4 May 2010 and concluding on 3 May 2031 and a balance of term of 7 years concluding on 3 May 2038.
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Decision last updated: 18 May 2012
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