R v Smith (No 2)

[2023] NSWSC 435

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Smith (No 2) [2023] NSWSC 435

Hearing dates:

3 March 2023

Decision date:

28 April 2023

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

The offender is sentenced to a term of imprisonment comprising a non-parole period of 15 years and a balance of term of 9 years, being a total sentence of 24 years, to date from 1 October 2021 and to expire on 30 September 2045. The offender will become eligible for release to parole when the non-parole period expires on 30 September 2036.

Catchwords:

SENTENCING - Murder - Where offender struck 77 year old victim repeatedly with frying pan - Extreme childhood neglect and abuse - Application of Bugmy v The Queen principle - Nexus between mental health diagnoses and offence - No remorse and uncertain prospects of rehabilitation

Legislation Cited:

Crimes Act 1900 (NSW), ss 19A, 33B, 35

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

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21, 21A, 30E, 61

Cases Cited:

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

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Category:

Sentence

Parties:

Rex
Narelle Fiona Smith (Offender)

Representation:

Counsel:
K Jeffreys (Crown)
S Hall SC (Offender)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Legal Aid NSW (Offender)

File Number(s):

2021/8448

Judgment

1. HIS HONOUR: On 24 October 2022, Narelle Fiona Smith (the offender) was indicted on a single count, that between 16 and 21 December 2020 at South Coogee she murdered Peter James McCarthy (the deceased). The jury retired to consider its verdict on 15 November 2022 and returned the next day with a verdict of guilty. The sentence hearing took place on 3 February 2023.

2. The Crown case at trial, which was circumstantial in nature, was that while visiting the deceased in his apartment, the offender became enraged with him for reasons unknown and beat him to death with a frying pan. She then stole some of the deceased’s property, including three bank cards and his Opal card, passing the bank cards on to a recent acquaintance who used them for purchases and cash withdrawals from ATMs.

3. The maximum penalty for the offence of murder is life imprisonment (Crimes Act 1900 (NSW), s 19A(1)), although it may be reduced to a sentence of imprisonment for a specified term (Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act), s 21(1)), subject to the Court’s finding as to the offender’s level of culpability (CSP Act, s 61(1)). If a sentence of imprisonment for a specified term is imposed, a standard non-parole period applies, which is 20 years in the circumstances of this case.

The circumstances of the offence

4. It is unnecessary to canvass the evidence in the Crown case that established the offender’s guilt, such as the forensic evidence, for the purposes of these remarks on sentence. However, I will refer to parts of the evidence in the trial that are relevant to the sentencing exercise, such as the evidence concerning the time, circumstances and mechanics of the offence, so far as those matters can be determined.

5. The deceased was aged 77. For about 12 years, he had resided alone in a two-bedroom apartment on the top floor of a three-storey (ground plus two levels) public housing block in South Coogee. There were two apartments on each floor, thus a total of six in the block. The other apartment on the top floor was occupied by a friend of the deceased, Cheryl Bray, who had resided in the block longer than the deceased.

6. The deceased was a retired solicitor, in receipt of the Age Pension. He was previously married to Denise McCarthy (Ms McCarthy) with whom he had one child, James, who was aged 41 in December 2020. Ms McCarthy, who lived three blocks away, and the deceased remained very close and would spend family occasions, such as Christmas and holidays, together.

7. During the course of the evidence in the trial, a profile emerged of the deceased as a genial, generous person with many female friends, particularly in the immediate area of his residence, who knew each other and Ms McCarthy and generally got on well with each other. Julia Strafela, who resided about 400 metres away, had known the deceased for about 6 years. She briefly had an intimate relationship with him and they remained, in her words, “best friends”. In 2019 and 2020, Ms Strafela stayed in the deceased’s apartment to avoid a neighbour with whom she was having a dispute. By December 2020, she had moved back to her residence, although some of her possessions remained in his second bedroom. The deceased had provided a key to his apartment to Ms Strafela and to Ms McCarthy.

8. Ms McCarthy said that the deceased had worsening health issues with his back, causing him over the 18 months before December 2020 to walk less, to “hunch over a bit” and to be unable to carry groceries. Ms Bray said, as to the deceased’s health in late 2020, “I could see he was going downhill. He didn’t look right. He looked very frail. Very undernourished. Kind of not eating. Just drinking”. His height and weight during the postmortem examination were recorded as being 1.61m and 69kg.

9. The offender resided about 50m from the deceased’s residence. She turned 46 on 17 December 2020. Ms Strafela gave evidence that she met the offender “a few months” before the deceased’s death. They became friends and Ms Strafela introduced her to the deceased. Ms Strafela was not familiar with their relationship, but thought they had become friends and that shortly before his death the deceased lent the offender about $30, which was not unusual for the deceased to do to his friends.

10. The deceased was last seen alive on Thursday 17 December 2020. His known movements and interactions on that day were of considerable focus in the trial. Call charge records for his mobile phone indicate that at 9:07am, his phone initiated a call with the offender’s mobile, lasting 8 seconds. There was a call from the offender’s mobile to the deceased’s mobile at 9:29am that lasted 11 seconds. At 9:32am, a text message was sent from the deceased’s phone to the offender’s phone, stating, “Hi trying to ring you Happy Birthday x will try later”. At 9:39am, there was a call from the deceased’s phone to the offender’s phone lasting 23 seconds.

11. At 10:26am, the deceased attended a bottle shop in South Coogee where he purchased three bottles of white wine and a packet of cigarettes. The purchases were captured on the shop’s CCTV, which did not include any of the area outside the shop’s entrance.

12. Later that day, the deceased and the offender visited Ms Bray in her apartment. Present when they arrived was a friend of Ms Bray’s, Donna Kennedy. Both women knew the deceased and neither had met the offender before. The deceased was carrying a bottle of white wine and he and the offender were drinking from glasses they brought with them.

13. Ms Bray formed a view that both the deceased and the offender were “drunk”. The offender was “rolling around my floor in the lounge room … And before she left she told me she urinated on my carpet twice”. The deceased left the apartment at some point and returned with a second bottle of white wine. Ms Bray said that only the deceased and the offender drank the wine that they had brought with them.

14. Ms Bray’s daughter, then aged 16, who I will refer to as Carol, arrived while the four adults were in the apartment. Carol had moved out of home and was residing near Bondi Junction. She was displeased to see her mother had guests and walked through to her bedroom. She also had not previously met the offender.

15. While she was in her bedroom, the offender entered and an argument ensued between them. Carol said the offender started getting physically close, and she asked her to leave. Ms Bray intervened and asked both the deceased and the offender to leave, which they did. Ms Bray noted that the deceased did not have the bag with him that he typically had when he was out, and therefore she assumed they would have returned to his apartment. The deceased came back after five or ten minutes to collect the offender’s cigarettes, that being the last time that he was known to be seen alive by persons other than the offender.

16. Shortly afterwards, Carol and Ms Kennedy departed, leaving together. Ms Bray went to her bedroom and, as she was “dozing off to go to sleep”:

“… I heard just banging, which I am kind of used to hearing, because when Julia Strafela is there, they dance a lot, and there is always somebody that ended up on the floor. … I thought it was just normal people’s dancing and falling, or bumping into furniture maybe.”

17. Ms Bray’s evidence was that she went to bed about half an hour after Carol and Ms Kennedy left. The evidence of Ms Bray and Ms Kennedy as to the times of events that day was, in my view, unreliable, perhaps due to the quantity of alcohol they consumed, and therefore, I place little weight on their evidence in that respect.

18. Carol said that she travelled to her mother’s apartment by bus and when she left, she and Ms Kennedy caught the same bus back towards Bondi Junction, which she thought was at 2:05pm. Call charge records for Carol’s mobile phone indicate that she was in the South Coogee area from about 11:53am to about 2:06pm. Ms Kennedy said she used her Opal card on the bus. Those records indicate that it was used to tap onto the bus at 2:07pm. Accordingly, I am satisfied that the deceased and the offender arrived in Ms Bray’s apartment before midday and that they left shortly before 2pm.

19. Call charge records for the deceased’s mobile phone indicate that the last phone call was made that morning and that it was last operated at 8:39pm that night, being a receipt of data.

20. The deceased met with a group of friends for lunch at a city club every Monday, Wednesday and Friday. He had done so on Wednesday 16 December 2020, but failed to arrive at his usual time of 11:30am on Friday 18 December 2020. One of the friends texted him at 12:04pm, asking “Are you coming in today” and did not receive a reply.

21. On the evening of Friday 18 December 2020, one of the deceased’s bank cards was used multiple times in Summer Hill for purchases in a supermarket and to withdraw funds from an ATM. Nigel Fleming, who met the offender for the first time that morning, gave evidence in the trial that he used the bank card and that it and other bank cards, together with their PIN numbers, had been given to him earlier that evening by the offender.

22. On 19 December 2020, Ms Strafela sent the deceased text messages that went unanswered.

23. On the same date, Ms McCarthy unsuccessfully attempted to phone the deceased. Each time, she heard an automated message to the effect that the phone was turned off.

24. The following morning, on 20 December 2020, after a further unsuccessful attempt to phone the deceased, Ms McCarthy went to his apartment and let herself in. She found the deceased lying on the lounge room floor and the apartment ransacked. His face was covered with an item of clothing. He had no pulse and his body was cold. At 11:18am, she phoned emergency services and waited at the apartment until they attended. Ambulance officers pronounced the deceased dead at 11:22am.

25. The offender’s next independently confirmed whereabouts after she left Ms Bray’s apartment on the afternoon of 17 December 2020 was late that afternoon. Evidence was given in the trial by a person who at that time would occasionally supply small quantities of methylamphetamine and cannabis to the offender (the drug dealer). Typically, the quantity and price of methylamphetamine would be 0.1 gram, known as a “dot”, for $50. Call charge records indicate that there was a text sent from the offender’s phone to the drug dealer’s phone at 9:11am–9:12am on 17 December 2020. He recalled that on that morning, he received a text from the offender stating: “Don’t forget it’s my birthday. Hope you are bringing me something”. He understood that to mean that she wanted a present of drugs.

26. The phone records indicate that there were phone calls and text messages exchanged between the offender’s phone and the drug dealer’s phone number at 5:44pm and 6:44pm, and a text sent from the offender to him at 8:01pm. He recalled that he visited her at her residence late that afternoon, when it was still daylight, and gave her 0.1g of methylamphetamine. He let himself into her apartment which surprised her. He did not notice “anything out of the ordinary” about her. She told him that she was planning to “clean her kitchen up” that night.

27. The next independently confirmed observation of the offender was at about 11pm that night. At that time, she presented herself at her front door to police officers who were confirming her compliance with a bail curfew condition. The call charge records for her mobile phone indicate that it remained in the South Coogee area that night.

The state of the deceased’s body and his apartment

28. The deceased was found lying on his back. The clothes he was wearing fitted the description of those that Ms Bray saw him wearing when he was in her apartment on 17 December 2020, and that he could be seen wearing in the CCTV recording at the bottle shop, earlier that day. He was wearing jeans that had been pulled down to just above his knees, exposing his underwear. There was a resistance band exercise cord loosely looped over his lower torso and draped up to his neck area. Two dumbbells and a frying pan were on the floor near his head. The frying pan was significantly bent. Its handle had broken off and was nearby. DNA taken from blood stains on the dumbbells and on the frying pan (near the bent section and on its exterior) had the same profile as that of the deceased. There was a large quantity of blood spattering on furniture and curtains in the area around his head, which subsequent analysis determined to be the deceased’s blood.

29. Furniture had been moved about, drawers pulled out and their contents strewn over the floor in the lounge and dining room and the two bedrooms. One of the deceased’s arms was resting against a leg that had broken off an upended wooden side table, which was on the other side of his body. A broken wine glass was on a lounge chair.

30. An plastic tarpaulin, which appeared to be new, was located partly covering the deceased’s feet. It was not blood-stained and had on it three fingerprints that matched those of the offender. Its original packaging, including a plastic sleeve, was located nearby. The packaging also had matches for the offender’s fingerprints. The DNA of an unknown male was located on the tarpaulin. Expert evidence was given to the effect that it could have been on the tarpaulin for a considerable period of time if it had been kept inside the plastic sleeve:

“Q. Perhaps if you can say again, how long can DNA remain on an object?

A. It can last for quite a long time, depends on how it’s been stored, if it’s been cleaned, if it’s subjected to soil or water or the sunlight, that can degrade DNA, but if it’s been kept in a dry, dark place it can stay for quite a long time.

Q. So if a tarpaulin for example was kept inside its packaging for a period of time, would that be a situation where it would promote the retention of DNA?

A. Yes.

Q. So if there was DNA found on these corners of the tarpaulin, could one explanation or possibility for that be that it was a person who'd been involved in the manufacturing or the packaging of the tarpaulin some time ago?

A. Yes.

Q. That’s simply because you can’t tell [when] the DNA was deposited on the item?

A. Correct.”

31. There had been some interference with the locking mechanism on the deceased’s front door. A swab from the internal mechanism captured a DNA profile that matched the offender’s DNA. A locksmith gave evidence that the internal lock mechanism had been changed and not professionally installed, so that a different key was required to open the internal lock as compared to the external part.

32. Police located two wine bottles in the apartment, one which was empty and another that was partially empty. Ms Bray produced the two empty wine bottles the contents of which the deceased and offender had consumed while in her apartment.

33. The deceased’s mobile phone, wallet and the bag that he was in the habit of carrying with him when outside his apartment, were missing. The phone and bag were never located. The wallet contained cash, ANZ and NAB bank cards and his Opal card. As noted, the Crown case was that the offender gave the cards, together with pieces of paper with their pin numbers, to Mr Fleming on the evening of 18 December 2020. Police recovered from Mr Fleming and a friend of his mobile phones which the deceased had owned and not used. Mr Fleming said that the offender had provided them. It was suggested to Mr Fleming in cross-examination that he stole the cards and phones from a backpack that belonged to the offender. He denied that allegation. I am satisfied beyond reasonable doubt that Mr Fleming was truthful and reliable in his evidence that the offender gave him the deceased’s cards and pin numbers.

34. The offender was captured on CCTV using the deceased’s Opal card on buses on the afternoon of Sunday 20 December 2020. The Opal card was located in her residence following her arrest.

Injuries and the cause of death

35. Dr Rebecca Irvine conducted a post-mortem examination of the deceased. She noted a depression deformity of the right lower two‑thirds of the face, meaning it was crushed inward, and a depression deformity of the nose. There was a contusion (a bruise, or discolouration) to the whole of the face except for the left lower third of the face. There were multiple lacerations to the top of the head and face.

36. Dr Irvine determined the cause of death to be multiple applications of blunt force to the head, which had caused haemorrhages in multiple areas of the brain and multiple comminuted (shattering) facial bone fractures, as well as fractures that had separated the upper jaw and nose from the rest of the skull. There were fractures of the right canine tooth, an evulsion (tearing away) of a lateral incisor tooth and chipping of the lower front teeth.

37. Dr Irvine described the mechanics of the cause of death as follows:

“… there are multiple possible mechanisms including blood loss but I think that the most obvious one is that he would not be able to breathe because the damaged structures had been pushed into the face, and he did not have an open airway …”

38. Dr Irvine considered that, while it was possible to cause so many fractures with one blow if it was with a large object with a broad surface:

“… it’s more likely, especially given the number of lacerations, that there were multiple blows with an object or objects.”

Dr Irvine was able to determine that the object or objects did not have a point or blade or sharp edge, or a distinctive characteristic one would expect from, say, a hammer or a rod. She considered it possible that the injuries were caused by a frying pan or dumbbells.

39. Other observed injuries were buckle fractures of the sixth and seventh ribs on the right side; abrasions on the right elbow and forearm and the palm of the left hand; and bruising on the back of the left wrist, the right hand, the right and left upper arm, the right and left thighs, right lower leg and the ball of the right foot. Dr Irvine also catalogued bruising on the right side of the deceased’s abdomen, left lateral midback and right anterior shoulder.

40. Dr Irvine was unable to determine a time or date of the deceased’s death. He was found to have a blood/alcohol concentration of 0.188g of alcohol per 100ml of blood.

The offender’s admissions and arrest

41. On Wednesday 23 December 2020, the offender spoke to a journalist she met in her street, who was covering the story of the killing of the deceased. The journalist recorded the interview. The offender told him that she last saw the deceased “last Thursday”, at the deceased’s place. She said: “We had a bit of a shindig, dinner”. She said it was a “couple of drinks … for my birthday”.

41. The offender spoke to police during a police canvassing of local residents. She was a person of interest in the investigation by 21 December 2020, when a fingerprint that was located on the deceased’s front door had been matched to her.

42. On 23 December 2020, the offender texted Detective Senior Constable Guy, stating: “Spoke with reporter, if banging was heard Thursday, that was us cleaning, and me dragging the rubbish downstairs, hope this helps”.

43. The offender was arrested at her residence on 11 January 2021 and charged with murder and dishonestly obtaining a financial advantage by deception. She has been in custody since that date. As she was being arrested, she told police, in a video-recorded exchange, that “I was there until the late afternoon going on dinner”. Police located a four-page hand-written account by the offender, that she apparently intended to provide to police. In the course of that explanation, she wrote that she was at his residence on the morning of 17 December 2020. They had “a couple of wines – (2 each)”. She continued:

“Peter said that he had to go down to the Liquor Man to get more wine … We walked down to liquor shop, I waited outside while I had a cigarette. We went back to my place. Peter stayed an hour. He gave me for my birthday $50.00.”

45. In the offender’s version of events, later that day she and the deceased met up with Ms Bray in the deceased’s apartment. She went across to Ms Bray’s apartment and spoke with Carol and “her grandmother” and had an argument with Carol. She then returned to the deceased’s apartment where she saw that he was “finishing another bottle”. Afterwards, she offered to cook dinner for the deceased. She found two steaks and “premade potato bake”. While that was cooking, she “fixed the lock on his front door”. She “put the steak on” and they chatted, then ate dinner. She left to return to her residence, taking some things with her.

46. The offender did not give evidence in the trial or at the sentence hearing. Dr Richard Furst, forensic psychiatrist, related in a report that was tendered in the sentence hearing what the offender told him about her drug and alcohol use on her birthday:

“[The offender] stated she took one ‘point’, 0.1g, of ‘ice’ and a small amount of cannabis, ‘a couple of cones here and there.’ She had also been drinking, i.e. ‘a bit of beer and wine.’ She did not report suffering from any abnormal thinking or mental state on the evening in question and continues to deny she was in any way responsible for the death of [the deceased].”

Relevant findings of fact concerning the killing of the deceased

47. I am satisfied beyond reasonable doubt of the following facts which are drawn inferentially from the evidence. The offender killed the deceased in the late afternoon or early evening of 17 December 2020, before the drug dealer attended her residence.

48. On the basis of Dr Irvine’s findings and the evidence of the crime scene, I conclude that the offender repeatedly hit the deceased to the head and body with the frying pan and perhaps other objects as well. She killed the deceased by a blow or blows to his face and head that were delivered with considerable force, such that I am satisfied that her intention at the time was to cause his death. The offender committed the offence in an explosive and sustained fit of anger. I will return later to the question of motive.

49. I infer that the offender and deceased had been consuming alcohol together before visiting Ms Bray. I note the evidence that they continued to do so in her apartment and that they were heavily intoxicated while there, and the deceased’s high blood/alcohol content at the time of his death. I find that at the time that the offender killed the deceased, she was at least significantly affected by alcohol, but taking into account the evidence of the drug dealer and the police officers who saw her at 11pm that night, as well as evidence of text exchanges she had with a friend that evening, I find that she was not intoxicated to the extent that she was deprived of the capacity to form an intent to kill the deceased. My finding as to intent is thus consistent with the jury’s verdict.

50. There is no evidence that the offender was affected by a prohibited drug at the time of the killing. It occurred before she was supplied with methylamphetamine by the drug dealer.

51. Having regard to the presence of the tarpaulin that was found on the deceased’s body, I conclude that the offender returned to the crime scene afterwards with the tarpaulin, with a view to doing something with the deceased’s body, although there is insufficient evidence to establish what that was. I do not regard the presence of an unknown male’s DNA on the tarpaulin as indicative of the involvement of a second person in the disposal of the deceased’s body, in view of the evidence that it could have been on the tarpaulin for a considerable period of time.

A victim impact statement

52. At the sentence hearing, James McCarthy read out a statement in which he described some of the pain and permanent damage that this crime has occasioned to him, his partner, his two sons and to his mother, Ms McCarthy. He noted that his mother attempted to write a statement for the Court, but the exercise proved too painful for her to complete it. She has suffered a heart condition in the wake of the shock and distress she experienced when she had the misfortune to be the one who discovered the deceased’s body in among the wreckage of his once tidily kept apartment. The Court offers its condolences to the deceased’s family and his many acquaintances who valued his friendship.

53. The Crown has requested that pursuant to s 30E(3) of the CSP Act I take into account the victim impact statement in the determination of the appropriate punishment on the basis that the harmful impact of the deceased’s death on his family is an aspect of the harm done to the community. I consider it appropriate to do so.

The offender’s background

54. Forensic reports were tendered at the sentence hearing on behalf of the offender, by Dr Furst and Dr Peter Ashkar, forensic psychologist and clinical neuropsychologist. Those reports included histories taken from the offender. In a report dated 20 January 2023, Dr Furst related the following history:

“[The offender] was born in Carlton, Victoria. She has one older sister and two younger brothers, having no contact with her siblings over the past 20 years. [The offender] was raised in Melbourne, attending school to Year 9.

She was subject to apparent childhood abuse and neglect in her family home, specifically being sexually abused by a family friend (named) when she was about 7 years of age and further sexual abuse from family members. She was removed by child protection services in Victoria and initially lived with her aunt and uncle until she was 10. She then became a Ward of the State from the age of 11 years. [The offender] resided in various foster homes and refuges in Victoria during that period. She claimed she was sexually abused whilst in State care, becoming a ‘runaway’ [and] living on the streets of Melbourne in her teens. She fell pregnant in Melbourne due to further sexual victimisation, i.e. when she was raped. She then travelled to Perth, being involved in a relationship with a man 20 years her senior. Her first son was born when [the offender] was only 12 years of age.

She stated that she was a ‘child prostitute’ and was the victim of a ‘child sex syndicate’ and that she was gang-raped by six men when she was 14 years of age. She also claimed that she was raped and bashed on numerous occasions in her teens and adult years.

Her interpersonal relationships have been unstable, with her partners being violent towards her, including each of the fathers of her children.

[The offender] reported suffering from nightmares of her childhood sexual abuse victimisation since her early teens. She also reported a history of insomnia, poor appetite, high levels of anxiety, the lack of trust [of] other people, being easily startled, being especially sensitive to loud noises, a pattern of avoidance, frequent panic attacks and difficulties being in crowds and/or on public transport, symptoms indicative of chronic post-traumatic stress disorder.

[The offender] [h]as a lengthy history of mental instability and high levels of emotional dysregulation, having presented/been admitted to numerous emergency departments and psychiatric facilities in crisis. Her stressors have included chronic psychological stress, prolonged domestic violence victimisation, alcohol abuse, the effects of illicit drugs, and chronic deliberate self-harm, especially cutting herself, which dates back to the age of 11 years, indicative of a borderline personality disorder.

She has been itinerant throughout various periods in her life, living in most States of Australia at different times and also living in New Zealand for 6 months.

She was involved in a relationship with (a named person) when she was living in Victoria and was the apparent victim of domestic violence, stating she was attacked by (him) and two other people on 26 April 2019 at Endeavour Hills. She said she was the victim of an acid attack/attack with an iron bar, suffering acid burns to her left leg, that attack being an additional traumatic. [The offender] then fled Victoria, seeking refuge at ‘The Hub’, a domestic violence shelter at Wollongong. She then moved to Albury before becoming homeless, ending up at a refuge near Hornsby and then at the Edward Eager Lodge in Sydney.

She reported her main method of ‘escape’ from her emotional problems over the years has been through heavy drinking, drug use and dancing in nightclubs whilst taking drugs.

[The offender] acknowledged she had a history of anger management issues when assessed in December 2019. She said she would seek help in that respect.”

55. The history provided by Dr Ashkar was strikingly similar. In a report dated 7 August 2019, he noted that when the offender fell pregnant aged 11, the father was aged 32. She has had five children to three men, all of whom she has given up for adoption.

56. I note that the Crown does not dispute the reliability of the offender’s account of her background, which, one might presume, has been well-documented over the years in health and governmental files.

57. Both forensic experts related a history of the offender’s drug and alcohol abuse. Dr Furst noted:

“[The offender] has a lengthy history of alcohol abuse/dependence. She was drinking from the age of 11 years, with alcohol abuse continuing throughout her teenage years, her 20s, 30s and 40s. She was drinking up to 4 litres of wine at a time, especially when stressed. She was not drinking much in the 1-2 year period preceding her offending in December 2020.

She used ‘party’ drugs such as MDMA and LSD at dance parties and clubs in her teenage years. Her main drugs of abuse as an adult have been cannabis and amphetamines, including ‘ice’ [methylamphetamine]. She was smoking in the order of 7-14g of cannabis per day in her 30s, indicative of a high-level of tolerance to cannabis. She … stopped smoking cannabis in her 40s.

Her use of methylamphetamine was more frequent in her 20s and 30s, approximately 0.2- 0.3g at a time. She would then stay awake for days on end. Her hospital presentations have often been in the context of drug abuse and/ or when in crisis, including prior episodes of apparent drug-induced psychosis. Details of prior psychiatric presentations are noted in her extensive medical records.

Her drug use had decreased significantly as at the latter months of 2020, [the offender] being subject to Community Corrections Supervision and intermittent urine drug screens at the time. She said she was using up to 0.2g of ‘ice’ per week and about 3g of cannabis per week. She was not drinking much.”

The offender’s mental health and cognitive ability

58. Dr Furst diagnosed the offender as meeting the diagnostic criteria, according to the Diagnostic and Statistical Manual of Mental Disorders (5th Edition) (DSM-5), for Post-Traumatic Stress Disorder (PTSD), Drug and Alcohol Use Disorder and Borderline Personality Disorder.

59. In a report dated 7 August 2019, Dr Ashkar assessed the offender as:

“… not intellectually impaired but is performing below expectations in almost all areas of her intellectual and cognitive functioning assessed, with reductions from expected ‘average’ level to ‘low average’ and ‘borderline’ levels in most cases.”

60. Dr Ashkar listed nine tests that he described as “psychometric (and other) tests” which I assume he applied to the offender. Dr Ashkar did not attempt to explain the results of each of the tests, or indeed any of them, rather, simply stating percentile results (the percentage of age-matched peers that score at the same level) in various areas of intellectual functioning in a summary fashion:

“She performed below this estimate in most areas of her intellectual and cognitive functioning assessed, including mental efficiency and control (‘borderline’), attention and concentration (‘low average’ at the 16th percentile), learning and memory for auditory/verbal material (i.e., rate of learning ‘low average’, initial acquisition ‘extremely low’, total acquisition ‘borderline’, delayed recall ‘extremely low’), learning and memory for visual material (‘low average’), and in areas of higher level executive thinking involving planning and organisation (‘borderline’), inhibition (‘low average’), abstract reasoning (ranging from ‘borderline’ to ‘low average’ depending on the task). Information processing speed was at expected level on psychomotor tasks (‘average’ at the 25th percentile) but ‘extremely low’ on rapid colour naming and word reading tasks. She also had difficulty discriminating learned material from new material on learning and memory tasks (‘extremely low’) revealing difficulties with source monitoring (a higher-level executive skill).”

61. Dr Furst considered that the offender “appeared to be of average intelligence”, thus providing a conflicting opinion of the offender’s level of intellectual functioning. In the absence of a pathway from test results to his conclusions, I prefer the impressionistic view of Dr Furst as to the offender’s level of mental functioning.

The offender’s physical health

62. Dr Furst was provided with the offender’s medical records from hospitals in which she had received treatment in Victoria and in New South Wales. He noted:

“[The offender] has a history of heart problems [heart murmur], asthma, bronchitis, hepatitis C, an acid burn attack on 26 April 2019, kidney problems, including being admitted to Royal Prince Alfred Hospital with pyelonephritis [kidney inflammation] in 2020. She was diagnosed with a pituitary macroadenoma at St Vincent’s Hospital in 2019. An MRI scan at St Vincent’s Hospital conducted on 06/11/20 indicated her right-sided pituitary macroadenoma had reduced in size [7mm x 10mm x 6mm in size] and had ‘features suggestive of interval pituitary apoplexy and subsequent chronic evolution’.

…

Additionally, [the offender] suffers from severe eczema/psoriasis, causing extensive skin rashes. The stress of her current circumstances in jail, coupled with her recent conviction, has exacerbated her skin condition and she had extensive rashes to both legs, both arms and her back when assessed on 16/12/22.” (footnote omitted)”

63. Dr Furst noted that the offender’s psoriasis is “poorly controlled” in prison. The offender tendered two nursing certificates issued by Justice Health, dated 28 September 2021 and 6 December 2021, which recommended, amongst other matters, cotton clothing and extra funding “to purchase treatment for psoriasis”.

64. The Crown material tendered at the sentence hearing included selected medical records of the offender concerning the pituitary abnormality, which was described in those notes as “a cystic lesion in the pituitary gland”. Senior counsel for the offender informed the court that the tumour has been decreasing in size and is not posing any difficulty to the offender.

65. Dr Furst noted visits by the offender to medical practitioners the day before the offence:

“She [consulted] Dr Jonathan Tey at the Randwick Medical Centre around 9am on 16/12/20, i.e. the morning prior to her offending. [The offender] was medically unwell, stating that she felt the same as when she had PN [pyelonephritis] and recording symptoms of sweats, passing out, back pain, dysuria [pain on micturition]. She was taking Norfloxacin, an antibiotic medication that had been commenced by Dr Raymond Tockar, a GP at the same medical practice on 01/12/20 for a suspected urinary tract infection.

Observations/ examination of the offender by Dr Tey on the morning of 16/12/20 indicated that she also had abdominal pain and tenderness in the right iliac fossa and to a lesser degree in the left iliac fossa. Dr Tey was sufficiently concerned about her symptoms, signs and general medical condition to refer her to the local emergency department, stating that she needed a ‘workup’ [typically pathology blood tests, cultures and imaging] with acute appendicitis needing to be excluded.

…

I note … that [the offender] attended the emergency department at the Prince of Wales Hospital at 9.36am on 16/12/20, indicating she followed the directions of Dr Tey, and that she was treated [in] the Emergency Department over the following several hours for a urinary tract infection before being discharged around 7pm.”

The offender’s criminal record

66. The offender’s criminal record up to 2016, tragically, is consistent with the personal history recorded by the forensic experts. The earliest entries in the offender’s criminal records are for matters of soliciting or loitering for prostitution that were dealt with in the Children’s Court in Western Australia and Victoria. She appeared for similar charges as a young adult in Victoria and in Queensland. When aged 19, she was fined with no conviction recorded in Queensland, for possession of a drug and a pipe to smoke a dangerous drug.

67. In 2016, the offender’s criminal record for the first time included matters of violence, minor at first but rapidly escalating in seriousness. In Tasmania in 2016, she pleaded guilty to charges of common assault, injuring and destroying property and breaching conditions of bail. No convictions were recorded.

68. Her criminal offending since then has been exclusively in New South Wales. On 9 February 2018, the offender was charged with using an offensive weapon with intent to assault (s 33B(1) of the Crimes Act) and reckless wounding causing actual bodily harm (s 35(4) of the Crimes Act), arising from an incident the previous evening (the 2018 offences). The offender pleaded guilty to the offences, agreeing to a set of facts that were tendered on the sentence hearing. They were to the effect that the victim was a 75 year-old man who was seated by himself in a poker machine playing area of a hotel, when he was approached by the offender, who he did not know. She started speaking to him and he told her that he did not want to speak with her. He smelt alcohol on her breath. They began to argue. A security guard approached and removed them from the premises. He observed the offender walk away from the hotel and the victim left shortly afterwards. The offender yelled out “Poofter”. CCTV captured the offender walking behind and beside the victim, who tried to avoid her by walking ahead. The offender was yelling at him and pointing a finger at him. At one point, he stopped and turned around. The agreed facts continued:

“At this point the offender apparently thought she was about to be assaulted and she then pushed the victim. He fell against a brick wall, impacting the wall with his face. He felt immediate pain and blood started running from his nose.

The victim regained his feet briefly and was seen trying to push the offender away. The offender then grabbed hold of the victim’s walking stick and there was a brief struggle for possession of the stick, but the offender managed to wrest it from the grip of the victim and the victim fell back to the ground. The victim was not using the walking stick as a weapon. The offender was then armed with the walking stick with the intention of assaulting the victim with it.

The victim started to scream out for help and as he lay there, the offender was seen to strike the victim several times with the walking stick. He was hit by the offender in the face, legs and back.

A witness observed the offender swinging the stick back and forth to strike the victim, holding the stick with two hands. The witness ran towards the offender and told her to stop. She swore at the witness and told him the victim was a ‘paedophile’ and he had ‘hit me several times’.

Police attended the scene and heard the offender rambling in a slurred way saying ‘that piece of shit old man. He is abusive to females.’ A few minutes later the offender was heard to say ‘I did overreact but he is rude to women.’ Police observed her eyes to be glassy, and could smell alcohol on her breath. The offender was generally aggressive towards police both at the scene and at the police station, consistent with her state of intoxication.”

69. The victim’s injuries included multiple injuries to the face and head, including lacerations to the bridge of his nose and non-displaced fractures of the nasal bone, soft tissue haematoma to both sides of the head.

70. The offender was sentenced to an aggregate sentence of an intensive correction order (ICO) for a period of 2 years and 6 months, commencing on 11 March 2020 (the date of sentence) and concluding on 10 September 2022. The ICO was revoked on 2 February 2021, following her arrest for the instant offence.

71. The agreed statement of facts for the 2028 offences was tendered in the trial by the Crown as evidence of a tendency by the offender to violently assault elderly men.

72. Three months after the ICO was handed down, on 26 June 2020, the offender was charged with stalking or intimidating with the intention of instilling fear of physical harm, destroying or damaging property and carrying a cutting weapon, arising from an incident earlier that day (the 2020 offences). The police facts recounted an incident when a driver attempted to park his car in a parking spot outside a shopping centre in Maroubra. As he did so, the offender was sitting partly in the gutter and partly in the parking spot. She stood up, approached the car and thumped the bonnet with an open hand, causing the driver’s wife, who was in the front passenger seat, to fear for her safety. The driver moved the car to another spot. As he parked alongside another vehicle, the offender opened his driver’s door with such force that it hit the other vehicle and broke off the door handle. Police attended and arrested the offender. A search of her property revealed a twin-bladed folding knife.

73. On 15 April 2021, the offender was sentenced to a conditional release order for a period of two years, to commence on the date of sentence and conclude on 14 April 2023. The offender was on bail in respect of these charges at the time of the murder.

74. On 2 March 2021, the offender was punished for an offence committed on remand of possessing an offensive weapon or instrument, for which she received 7 days in the cells. The weapon was described as a pen with a small razor attached to the end.

Objective seriousness of the offence

75. By reference to s 21A of the CSP Act, where appropriate, I take into account that the deceased was vulnerable due to his age and frail health (s 21A(2)(l)) and state of intoxication. He was killed in his own home (s 21A(2)(eb)) and when isolated from others. The ferocity and brutality of the offender’s attack was extreme. The murder was exacerbated by the state in which the offender left the body, her ransacking of his apartment and theft of some of his possessions. I note that she was separately charged with offences in relation to the larceny and use of his Opal card and that those charges are to be withdrawn. There is no evidence of premeditation.

76. I conclude that the offence falls in the medium range of objective seriousness, which I note accords with the submissions of both parties.

Subjective features

The offender’s motive and the relevance of her mental health diagnoses

77. In his report dated 26 January 2023, Dr Furst concluded:

"[The offender] consumed an unspecified quantity of alcohol on 17/12/20, together with an apparent[ly] small amount of methylamphetamines and cannabis. She was prescribed Lexapro 10mg daily and was taking antibiotic medication. She has a previous history of drug-induced psychosis. She is emotionally unstable as a consequence of her PTSD and borderline personality disorder at the best of times and was suffering from a urinary tract infection and/or pyelonephritis infection.

Those factors suggest that [the offender’s] apparent murderous impulse when killing [the deceased] was likely the product of the multiple psychological, psychiatric and acute medical problems she was suffering at the time, which impaired her judgement and caused her to lose control.

Additionally, the victim may well have reminded her of one of her previous abusers, multiple as her abusers have been throughout her life, as there is [an] uncanny parallel between her irrational and aggressive actions at Ashfield in February 2018 towards a male victim in his 70s, [the offender] striking him multiple times to his face with his walking stick, and her current offending, the victim again being struck to the head and being elderly."

78. I do not accept that the offence was the “product” of the factors identified by Dr Furst, but I accept the personal histories of the offender that were recorded by Dr Furst and Dr Ashkar, and Dr Furst’s diagnoses of PTSD and Borderline Personality Disorder. I find that there is a nexus between those disorders and the commission of the offence, in the sense that they likely contributed to the environment in which the offender could become so consumed with rage over something presumably innocuous as to form the intent to effectively destroy the deceased.

79. While I also accept Dr Furst’s diagnosis of a Drug and Alcohol Use Disorder, I am not persuaded that it was relevant to the killing. I find that the fact that the offender was intoxicated on alcohol in celebrating her birthday is relevant as a contributing factor to her becoming enraged, but I do not take it into account as a mitigating factor, pursuant to s 21A(5AA) of the CSP Act.

80. As to motive, I disregard Dr Furst’s opinion that the circumstances of this offence and the 2018 offence suggest that the victims may have excited a memory of one of the offender’s past abusers. While that may be a sound psychoanalytical approach, for legal purposes it is entirely speculative. The striking similarity with the 2018 offences does, however, add force to my conclusion that although the offender’s precise motive to kill the deceased is unknown, the killing was likely in response to something said or done by the deceased, knowingly or inadvertently, that upset her.

The offender was on conditional liberty

81. As noted, at the time of the killing, the offender had a criminal history for similar offending. Both 2018 offences are serious personal violence offences, as defined in s 21A(6) of the CSP Act, for the purposes of s 21A(2)(d). She was on conditional liberty consequent to the ICO for the 2018 offences and conditional bail for the 2020 charges (s 21A(2)(j)).

The offender’s moral culpability

Bugmy v The Queen

82. The offender’s childhood exposure to extreme neglect including sexual and non-sexual physical violence, emotional deprivation and exposure to drug and alcohol abuse by role models and others, and the absence of family or other positive sources of moral development, brings her squarely within the frame for an application of the principle enunciated in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [43]. The effect of its application depends upon the particular circumstances of the case, including an assessment of the offender’s prospects of rehabilitation. In Bugmy the plurality said, at [44]:

“An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.”

The offender’s mental condition

83. The offender’s diagnoses of PTSD and Borderline Personality Disorder are also relevant to the sentencing exercise in conflicting ways. In DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 McClellan CJ at CL observed, at [177], that if the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced and consequently the need to denounce the crime may be reduced with a reduction in the sentence. There may be a reduced need for the sentence to reflect considerations of general and specific deterrence. However, his Honour also observed that, conversely, it may be that an offender presents more of a danger to the community because of their mental condition, in which case, considerations of specific deterrence may result in an increased sentence.

84. I conclude that the offender’s moral culpability is reduced, pursuant to the Bugmy principle and due to the role played in the offence by her PTSD and Borderline Personality Disorder.

Evidence of remorse

85. The offender has not accepted responsibility for the offence. The sentencing exercise therefore does not involve any element of remorse or insight on the part of the offender. It is submitted on behalf of the offender that it was apparent during the trial that she was nevertheless upset by his death, evidenced by her being emotional as she sat in the dock during the pathologist’s evidence. That evidence was necessarily graphic, causing the jury to be visibly distressed as well, and to be given a special break. The offender’s distress at times during the trial was not reflective of a factor or factors that could warrant a mitigation of sentence.

The offender’s prospects of rehabilitation

86. This offence is an escalation in the offender’s relatively recent pattern of offences of violence, characterised by explosive outbursts of physical harm and property damage. It is apparent from admissions by the offender in the forensic reports that were prepared for the sentencing of the offender for the 2018 offences that by early 2020 she was well aware of the triggering effect of her consumption of alcohol on her violent behaviour and the need to commit to treatment of her drug/alcohol and mental health issues.

87. Clearly, the offender requires intensive psychiatric and drug and alcohol abuse therapy. The inevitably lengthy sentence of imprisonment she faces for this offence will allow ample time for the process of rehabilitation to progress. I take into account her modest steps thus far, in the form of certificates of completion of two courses offered to women in custody by the Salvation Army. One of those courses, amongst other matters, provides skills to cope with anger.

88. The offender’s future prospects of rehabilitation, while within the prison system and when returned to the community, particularly in light of her denial of responsibility for this offence, is not a matter I can confidently predict. For the purposes of this sentencing exercise, I regard her prospects of rehabilitation as uncertain.

Other considerations

General principles

89. I am satisfied that no sentence other than one of imprisonment is appropriate. I propose to hand down a determinate sentence. I have regard to the purposes of sentencing an offender that are identified in s 3A of the CSP Act and the standard non-parole period of 20 years. I have taken into account the submissions of the parties.

Onerous conditions of incarceration

90. The offender’s psoriasis impacts on her quality of life, whether she is in custody or in the community. Nevertheless, as noted by Dr Furst, it is not well-controlled in the prison system. I will take that into account in fixing the non-parole period.

Pre-sentence custody and accumulation

91. As noted, the offender has been in custody in relation to this matter, albeit not exclusively, since 11 January 2021. Following the revocation of the ICO on 2 February 2021, the sentence of 1 year, 8 months, 3 weeks and 4 days was backdated to commence on 11 January 2021. The balance of term expired on 5 October 2022. The sentence for the instant offence will be structured to take into account the need for a degree of accumulation with the sentence for the 2018 offences.

Special circumstances

92. A variation in the non-parole period ratio is warranted by an application of the Bugmy principle and the lengthy period of supervision in the community that will be required consequent to her mental health diagnoses, which are causatively related to the same childhood and adolescent experiences that are the foundation of the Bugmy considerations.

93. The consequent relatively lengthy period of parole will also reflect the element of uncertainty as to the offender’s prospects of rehabilitation.

Crimes (High Risk Offenders) Act 2006 (NSW)

94. Section 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) applies to the offender.

Sentence

95. The offender is sentenced to a term of imprisonment comprising a non-parole period of 15 years and a balance of term of 9 years, being a total sentence of 24 years, to date from 1 October 2021 and to expire on 30 September 2045. The offender will become eligible for release to parole when the non-parole period expires on 30 September 2036.

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Amendments

28 April 2023 - Amendment to coversheet

Decision last updated: 28 April 2023