R v Stephen James Boyd (No 2)

[2018] NSWSC 380

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Stephen James Boyd (No 2) [2018] NSWSC 380

Hearing dates:

1 December 2017, 2 February 2018

Date of orders:

23 March 2018

Decision date:

23 March 2018

Jurisdiction:

Common Law - Criminal

Before:

Lonergan J

Decision:

(1) In respect of count 4, driving in a manner dangerous to the public, knowing police were in pursuit, sentenced to a fixed term of imprisonment of 18 months commencing on 27 July 2017 and expiring on 26 January 2019.

 

(2) In respect of count 2, the wounding of Daniel Boyd with intent to cause grievous bodily harm, sentenced to a non-parole period of 5 years and 3 months commencing on 27 July 2018 and expiring on 26 October 2023, with a balance term of 1 year commencing on 27 October 2023 and expiring on 26 October 2024.

 

(3) In respect of count 1, the murder of Despina Kontozis, sentenced to a non-parole period of 22 years and 6 months commencing 27 July 2020 and expiring on 26 July 2043, with a balance term of 7 years and 6 months commencing on 27 January 2043 and expiring on 26 July 2050.

 (4) Eligible for release to parole at the conclusion of the non-parole period for count 1.

Catchwords:

SENTENCE – murder – wounding with intent to cause grievous bodily harm – drive in manner dangerous to the public knowing police in pursuit – late plea of guilty – attack over lengthy period of time – extensive sharp and blunt force injuries inflicted – attack on intervener – domestic violence offence – offender aged 53 – no mitigating factors – rehabilitation – whether remorseful – general deterrence – retribution – denunciation – statements by offender to health practitioners to minimise his criminality

Legislation Cited:

Crimes Act 1900 (NSW) ss 18, 19A, 33, 51B, 59
Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW) Pt 4 Div 1A, ss 3A, 21, 21A, 22, 54A, 61

Cases Cited:

Adanguidi v R (2006) 167 A Crim R 295; [2006] NSWCCA 404
Cahaydi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
Imbornone v R [2017] NSWCCA 144
Markarian v R (2005) 228 CLR 357; [2005] HCA 25
Muldrock v R (2011) 244 CLR 120; 212 A Crim R 254; [2011] HCA 39
R v Boyd [2017] NSWSC 1099
R v Dawes [2004] NSWCCA 363
R v Harris (2000) 50 NSWLR 409; 121 A Crim R 342; [2000] NSWCCA 469
R v Holder [1983] 3 NSWLR 245; 13 A Crim R 375
R v Kilmore (NSWCCA, 13 August 1998, unrep)
R v Low (1991) 57 A Crim R 8
R v Merritt (2004) 59 NSWLR 557; 146 A Crim R 309; [2004] NSWCCA 19
R v Miles [2002] NSWCCA 276
R v Thomson; R v Houlten (2000) 49 NSWLR 381; 115 A Crim R 104; [2000] NSWCCA 309
R v Valera [2002] NSWCCA 50
R v X [2003] NSWCCA 56
Veen v R (No 2) (1988) 164 CLR 465 at 476; 33 A Crim R 230; [1988] HCA 14

Category:

Principal judgment

Parties:

Regina (Crown)
Stephen James Boyd (Offender)

Representation:

Counsel:
C Maxwell QC (Crown)
W Brewer (Offender)

  Solicitors:
Director of Public Prosecutions (Crown)
Ross Hill & Associate Solicitors (Offender)

File Number(s):

2016/127282; 2016/130612

Judgment

1. On 7 July 2017, the offender, Stephen James Boyd, was arraigned before RA Hulme J in this Court on an indictment that contained four counts, including two alternative counts relating to the assault of Daniel.

2. The first count on the indictment charged the offender with the murder of Despina Kontozis at Bundeena in the State of New South Wales on 24 April 2016: s 18(1)(a) of the Crimes Act 1900 (NSW). The second count on the indictment charged the offender with wounding Daniel Boyd with intent to cause grievous bodily harm (s 33(1)(a) of the Crimes Act 1900 (NSW)) also on 24 April 2016. The third count was in the alternative, that the offender assaulted Daniel Boyd, occasioning actual bodily harm: s 59(1) of the Crimes Act 1900. The fourth count charged the offender with driving a vehicle on 25 April 2016 in a manner dangerous to others whilst he ought reasonably to have known that police officers were in pursuit and required him to stop the vehicle: s 51B(1) of the Crimes Act 1900.

3. On 7 July 2017, the offender pleaded not guilty to all charges and the hearing was set for 28 August 2017.

4. On 17 August 2017, an application was made to adjourn the hearing date. The application was dismissed by Johnson J on 18 August 2017.

5. On 23 August 2017, the offender pleaded guilty to counts 1, 2 and 4 on the indictment which was accepted in full satisfaction of the indictment.

6. The maximum penalty for the offence of murder is life imprisonment: Crimes Act 1900 (NSW) s 19A. The standard non-parole period for this offence in this case is 20 years: Crimes (Sentencing Procedure) Act 1999 (NSW) Pt 4, Div 1A. A life sentence must be imposed if the level of culpability involved in the commission of the offence was so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence: Crimes (Sentencing Procedure) Act 1999 (NSW) s 61(1). The burden of proving that this case falls within s 61(1) rests on the Crown and the standard of proof is beyond reasonable doubt: R v Merritt (2004) 59 NSWLR 557; 146 A Crim R 309; [2004] NSWCCA 19 at [35]. If a life sentence is imposed, the Court cannot fix a non-parole period: R v Harris (2000) 50 NSWLR 409 at 429; 121 A Crim R 342; [2000] NSWCCA 469 at [122].

7. The maximum penalty for an offence of wounding with intent to cause grievous bodily harm is 25 years imprisonment: s 33(1) of the Crimes Act 1900. This offence carries a standard non-parole period of seven years imprisonment: Crimes (Sentencing Procedure) Act 1999 (NSW) Pt 4, Div 1A.

8. The maximum penalty for the driving in a manner dangerous knowing police officers were in pursuit and that he was required to stop (s 51B(1) of the Crimes Act 1900) is three years imprisonment for the first offence. There is no standard non-parole period for this offence.

9. Section 54A of the Crimes (Sentencing Procedure) Act specifies a standard non-parole period of 20 years for the offence of murder and seven years for the offence of wounding with intent to cause grievous bodily harm.

10. In fixing a sentence, I am required to be mindful of the two legislative guideposts constituted by the maximum sentence of life and the standard non-parole period of 20 years for the murder of Tina and the maximum sentence and standard non-parole period of 7 years for the offence of wounding with intent to cause grievous bodily harm to Daniel: Muldrock v R (2011) 244 CLR 120; 212 A Crim R 254; [2011] HCA 39 at [27]. However, I am not required to undertake the sentencing exercise by asking whether there are reasons for not imposing the standard non-parole period. Instead, bearing in mind the two legislative guideposts, I am required to identify all the factors relevant to the sentencing task, consider their significance, and then assess the appropriate sentence: Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [51] per McHugh J; Muldrock at [26].

11. The purposes of sentencing are articulated in s 3A of the Crimes (Sentencing Procedure) Act 1999. These purposes overlap and none can be considered in isolation from another: see Veen v R (No 2) (1988) 164 CLR 465 at 476; 33 A Crim R 230; [1988] HCA 14; Muldrock v The Queen (2011) 244 CLR 120; 212 A Crim R 254; [2011] HCA 39 at [20]. Those purposes are:

(a)   to ensure that the offender is adequately punished for the offence,

(b)   to prevent crime by deterring the offender and other persons from committing similar offences,

(c)   to protect the community from the offender,

(d)   to promote the rehabilitation of the offender,

(e)   to make the offender accountable for his or her actions,

(f)   to denounce the conduct of the offender,

(g)   to recognise the harm done to the victim of the crime and the community.

12. I am also required to bear in mind, together with the limiting principles of proportionality, the principle of totality. This principle determines the extent to which a particular sentence is to be served concurrently or cumulatively with another sentence. Because there are three distinct offences, I need to give consideration to what extent, if at all, those sentences should be partially or fully cumulative – or, to put it another way, to what extent if at all these sentences should be served at the same time. As stated by Street CJ in R v Holder [1983] 3 NSWLR 245; 13 A Crim R 375:

The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straight forward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.

The offences

13. I will now set out certain undisputed facts concerning the offences. These are taken from the agreed statement of facts.

14. At the time of her murder, Despina, known as “Tina”, was aged 51 years and had been in a long term relationship with the offender. They had one child, Daniel, who was born on 19 August 1998. Tina was a much loved daughter, mother, sister and friend who worked at the Goanna Patch Child Care Centre in Bundeena. She had been working there for about 10 years.

15. They lived together at 5 Beachcomber Avenue, Bundeena, which was a two-storey house. The bottom level was rented out to a family of three including Harrison Hemsley. In the upstairs part of the house there were three bedrooms and external stairs at the front of the house.

16. The offender had previously been in employment but lost his job due to alcohol consumption. He was made redundant from another job which led to a year off work. His drinking increased. The offender would drink daily. Excessive drinking caused arguments between Tina and the offender.

17. On 29 July 2015, the offender assaulted Daniel when he had come to the aid of his mother during a verbal attack on her by the offender. The offender pushed Daniel onto his bed and attempting to strangle him. Police were called, and a 12-month AVO was made which included a condition that the offender must not approach Daniel or Tina within 12 hours of consuming alcohol. At the time of the offence that led to the AVO, the offender was described as “shaking, groggy and unstable on his feet” and appeared to be “paralytic”.

18. After this he had a period away from the home, but around February/March 2016, recommenced living there.

19. On the day before the murder, the offender was drinking at home with a friend, Jim. Daniel and Tina had a conversation on the phone, as Tina was away visiting her mother, regarding the offender drinking too much alcohol. Tina said that she would speak to the offender about his drinking and the AVO when she returned.

20. The next morning, Daniel picked his mother up from the Bundeena ferry wharf at about 10.00 am. They discussed the offender’s drinking and how he was drunk. Daniel left at about 1pm to visit a friend who lived nearby, and when he left, both the offender and Tina were asleep in their separate bedrooms.

21. At about 2.38 pm, Tina had a telephone conversation with her friend Donna, in which she discussed damage to the house from the offender “going off” the night before, how he needed to go into rehab, and that he was at home, hiding in his bedroom, drinking.

22. At about 3pm, Harrison Hemsley, who was at home on the ground floor of the property heard an argument between Tina and the offender. He describes it lasting about 10 minutes. A short time later, he heard Tina shriek, followed by screaming and loud, hard thumping noises which made the walls vibrate.

23. There were accounts from other neighbours who heard a female scream and a male yelling, “fuck you” at about 2.30 pm, and other accounts that around that time a female voice also was heard shouting, “get off me, get off me”.

24. At 3.28 pm, Harrison sent a Facebook message to Daniel asking “what the fuck is going on”, stating “someone has been screaming, there’s been thumpings, I don’t know what to do”. Daniel replied “I’m going up” and Harrison replied “Get up here NOW”. Daniel returned home, arriving at 3.36 pm. At this point, Harrison called triple-0.

25. Daniel heard Tina screaming as he ran towards the house. He yelled out, “Mum” and pulled his keys out as both the screen and front door were locked. As he opened the screen door, the offender was unlocking the front door and Daniel could see blood on his hands. He yelled, “What have you done?”. The offender did not answer and went to his bedroom.

26. Daniel ran inside. Towards the rear living area he saw blood on the walls and floor, and his mother lying on her side covered in blood. He stood and yelled, “Mum” loudly. He turned and saw the offender coming towards him with a bat in his hands. Daniel ran out onto the rear balcony. The offender locked the door behind him but Daniel ran around to a second door and came back into the house. As he re-entered, the offender grabbed him by the shirt, wrestled him, and swung the bat, hitting him on the arm and head. Daniel lost consciousness briefly, then got up and ran to a neighbour’s house for assistance. Daniel was conveyed by ambulance to hospital. He suffered two lacerations to his head that were sutured. His forearm was not fractured but suffered a soft tissue injury and an injury to his chest.

27. The offender then got in his car and drove away. He was seen on CCTV footage at Heathcote Bottle Shop buying a 700 mL bottle of Wild Turkey and two four-packs of Devil’s Cut bourbon and cola. He also withdrew $200 cash.

28. At about 4pm, police arrived and secured the scene. Attempts were made to revive Tina, but they were unsuccessful.

29. A Post-mortem examination was conducted on 26 and 27 April. There were a very large number of sharp and blunt force injuries, mostly involving the head and neck area, upper extremities, and, to a lesser extent, the torso. Three pieces of wood were recovered from Tina’s head, right flank, and right forearm. The cause of death was recorded as multiple sharp and blunt injuries.

30. I will not describe all the injuries, but I will describe the most severe of them because they reveal the brutal, prolonged, vicious and appalling nature of the attack made upon Tina by the offender.

31. There was a complex open skull fracture on the front-left side of the brain, with partly lost, exposed and lacerated brain matter. This resulted in a large gaping defect on the left side of the skull measured 12 by 10.5 centimetres. There were fractures to the base of the skull and facial fractures to the left side of the head around the eye socket, upper jaw, cheekbone and nasal bone. There were numerous stab wounds involving the face and both sides of the neck. There were multiple bruises and stab wounds in the chest, back and shoulders. Some of the stab wounds were very deep, 10-12 centimetres.

32. Both arms showed extensive sharp and blunt injuries indicative of defensive type injuries. The tip of Tina’s right ring finger was cut off. Both wrists were fractured. There were other bruises and lacerations to her hands and arms.

33. Three bloodstained knives were located in a bin in the kitchen and in the drawer of a kitchen cabinet as well as under Tina’s body in the lounge room where she lay. In a bedroom on the left of the hallway, two pieces of broken timber were found that appeared to have once been one piece of timber but now split in the middle. Both pieces had blood staining on them, which was Tina’s.

34. On 25 April 2016, the offender was seen in Goulburn. He purchased more alcohol at about 2.45 pm. At 4.30 pm, his vehicle was recognised by Highway Patrol. He was followed by police operating their warning devices. He failed to stop. He continued driving, increasing his speed up to 150-165 km/h, including speeding at 145 km/h on the outskirts of Braidwood and driving at a similar speed as he entered the town residential area, which had a speed limit of 50 km/h. He overtook a vehicle, left the roadway, and collided heavily with a table drain. It was an Anzac Day public holiday and there were moderate amounts of traffic. At the time of the pursuit, he had a suspended driver licence, it having been confiscated by police on 12 April 2016 due to a high-range PCA offence.

35. The offender was arrested and conveyed to Queanbeyan Police Station and was informed of his rights, after which he said, “I’m not denying I did what I did”, and then later that day, “She badgered me all day, just would not stop, even though I told her to stop before I just lost it”. He then (as is his right) declined to participate in an electronically recorded interview with police. He has remained in custody since.

36. On 20 May 2016 the offender wrote and sent a letter addressed to Daniel and Nick, one of Tina’s brothers. I will read the first part of the letter because it provides evidence, close to the time of the commission of the offences, of the offender’s attitude to what he had done, his lack of remorse and his despicable attempt to deflect blame for his murder of Tina and assault on Daniel to the police who pursued avenues to try to protect Tina and Daniel.

Dear Nick & Daniel & our families.

This is by far the hardest letter I have ever written & to try & explain why things have turned out this way & how I feel, I will try. As you know the last 18 months of Tina, Daniel & my relationship was starting to strain & the arguments were getting worse & more often between the three of us. Looking back now with a clear mind I wish & wish & wish we could have separated at least for a while until things had calmed down at home, but we loved each other too much & thought we could always get over any obstacles as we had done over the last 24 years.

To this day I still believe the police should not have been called & should not have got involved in our family arguments. All it did was make things worse because the police overreact & exaggerate the facts & charges resulting in an AVO then a breach of AVO then a good behaviour bond all with court appearances, court costs & fines.

Both times I was arrested I was dragged out of bed, handcuffed & locked up for a day, then bailed out onto the street with nothing & not allowed to go back home for weeks & over a month the second time until next court date this made things very difficult for me & caused me to sink into a dark depression. Tina & Daniel were unharmed in both instances & the police should not have carried on with it resulting in restrictions & more pressure on me which I believe contributed to my mental & emotional breakdown that terrible day. I was drinking alcohol to cope with my problems which helped at times, but in the long run probably made things worse.

I will return to the significance of the matters stated by the offender in this letter later.

Findings

The murder of Tina Kontozis

37. I find that the offender intended to kill the Deceased, Tina. I accept the Crown’s submission that the savagery and brutality of the violence, the evident use of multiple weapons, and the evidence that the attack occurred over a sustained period leads to that inescapable view. I have no doubt that the murder resulted from alcohol induced and fuelled anger directed towards the deceased. I have no doubt that the offender was affected by alcohol at the time of the murder, and that the state was self-induced.

38. The findings on post-mortem and the terrible damage inflicted on Tina’s body demonstrate clearly that there was significant force repeatedly used by the offender upon her and that she was defenceless.

37. I accept the Crown’s submission that the offender’s actions during the attempt to intervene by Daniel indicates presence of mind exhibited by the offender in his being able to prevent Daniel from assisting his mother by locking him out, and then seriously assaulting him when he made his way back inside. This shows a deliberate focus on both attacking his son with a bat, intending to harm him, and to prevent his intervention in the attack the offender was pursuing on Tina.

38. The Crown submitted that there was a level of calculation in his behaviour including that the offender washed his hands and fled the scene and I also take those matters into account.

39. The Crown submitted that it was open to me to be satisfied that life imprisonment should be imposed. It was submitted that whilst the burden is on the Crown to establish beyond reasonable doubt that a case falls within s 61(1) (R v Merritt (2004) 59 NSWLR 557; 146 A Crim R 309; [2004] NSWCCA 19 at [35]), not all of the factors which would lead to a conclusion that a life sentence is applicable must be established beyond reasonable doubt (Adanguidi v R (2006) 167 A Crim R 295; [2006] NSWCCA 404 at [55]). It is the combined effect of the findings concerning those issues that are what I have to consider, those issues being (1) retribution; (2) punishment; (3) community protection; and (4) deterrence.

40. Section 61 is subject to s 21(1) of the Crimes (Sentencing Procedure) Act and that provides that even though liable to a sentence of life imprisonment, an offender may receive a determinate sentence, that is a sentence for a fixed period of years. It has been held that a two-stage process is therefore required in determining whether a life sentence is mandated: R v Valera [2002] NSWCCA 50 at [8]; R v Miles [2002] NSWCCA 276 at [204].

The Court must first determine whether on the objective facts the level of culpability is so extreme that it warrants the maximum penalty. The Court must then determine whether the subjective factors are capable of displacing the prima facie need for the maximum penalty.

43. I have carefully considered those requirements. In this case, I decline to find life imprisonment. I have considered more broadly the issues bearing on sentence including the offender’s moral culpability, subjective circumstances, and other factors relevant to an assessment of whether a life sentence should be imposed for the purposes of s 61(1). I am not satisfied beyond reasonable doubt in this case 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 a life sentence.

44. That said however, this was an offence of very substantial gravity committed by an offender involving extensive violence. He was the long term partner of Tina and it was committed in her home.

45. Section 54A of the Crimes (Sentencing Procedure) Act requires that I assess the seriousness of the offence taking into account only the objective factors affecting its relative seriousness. I am to consider separately the offender’s moral culpability for the offence.

46. In assessing the objective seriousness, I find the murder to be well above the mid-range of seriousness, bearing in mind the obvious ferocity of the attack, the length of time it went on – which at the very least seems to have been close to half an hour, the extensive and horrific injuries suffered by Tina, and the multiple weapons used.

The wounding with intent to cause grievous bodily harm of Daniel

47. In assessing the objective seriousness of the assault upon Daniel, I find the assault to be in the mid-range of seriousness.

The police pursuit driving offence

48. The police pursuit offence and the dangerous driving associated with it I find in the mid-range of seriousness for offences of that type.

Aggravating and mitigating factors

49. Section 21A of the Crimes (Sentencing Procedure) Act requires me to take into account certain aggravating and mitigating factors in determining the appropriate sentence for an offence. There are a number of matters of aggravation that apply.

50. The offender had a record of previous convictions, one recently which involved an alcohol-fuelled physical attack on Daniel.

51. The offender was on a good behaviour bond at the time of these offences on 24 April 2016 and this is an additional aggravating factor.

52. Another aggravating factor that I have already made reference to is that the offence occurred in Tina and Daniel’s home, a place where they are both entitled to feel safe and secure.

53. There are very few mitigating factors set out in s 21A(3) that apply to this offender. One is that there is no evidence that the offending was part of a planned or organised criminal activity. The other is that the offender pleaded guilty, although that was only five days before the date set for trial. However, he is entitled to a discount for that and I will return to that subject.

54. In relation to other potentially mitigating factors, it was submitted by counsel for the offender that the offender has shown remorse and a recognition of the enormity of what he had done in his letter of 20 May where he says:

“For the drink driving charge with more serious charges to come, so it’s fair to say I might be in here for quite some time if not the rest of my life. I’m trying to stay positive by thinking of all the good times Tina, Daniel and I had and wish I could come home and see them again but it’s not to be. I’ve made the biggest mistake of my life and still can’t believe it’s happened.”

55. Counsel for the offender submitted that I ought not view the letter in a way that is negative and that really what those paragraphs amount to is an expression of regret on the part of the offender that he was not able to solve the problems that presented themselves without the intervention of police. After carefully considering that submission, I reject it because I am of the view that submission is not borne out by the content or the tone of the letter.

56. Another mitigating factor raised on behalf of the offender was that he had led a blameless life until aged 37 and that his problems with alcohol started then affecting his behaviour. It was submitted that he was honest in his dealings with Dr Furst and that I should take into account the diagnosis of Dr Furst of alcohol dependence and a previous major depressive disorder. It was however conceded that Dr Furst was unable to state that there was any major depression operative at the time of the offending. It was submitted however that I should take into account that the offender was feeling depressed in the time leading up to the offending and was resorting to alcohol to deal with it.

57. Dr Furst’s report refers to a history of previous depressive episodes and the taking of tricyclic antidepressant medications in the 1990s for depression (p 7 of the report) rather than any history of depressive disorder or any depressive episode being operative at the time of the offending.

58. There was evidence offered on behalf of the offender from a Mr Machlin, Clinical Psychologist, who was of the view that the offender met the criteria of an adjustment disorder with depressed mood and alcohol dependence at the time of the offending. Mr Machlin describes this as “reflecting his impairment in social and emotional functioning in reaction to an identifiable set of stressors”.

59. I am required to bear in mind that any histories provided by the offender to Mr Machlin or Dr Furst, and those parts of those reports that relied upon the offender’s version of the events leading up to the offending, or his perceptions of his medical history must be considered in light of the statements of the NSW Court of Criminal Appeal in Imbornone v R [2017] NSWCCA 144 at [57] and in particular:

“If an offender appearing for sentence wishes to place evidence before the Court which is designed to minimise his criminality or otherwise mitigate it, then it should be done directly and in a form which can be tested”

60. The offender gave a history of events to Mr Machlin and Dr Furst, experts retained by him. He never gave evidence before this court on the sentencing hearing and so was never subjected to cross-examination in relation to his assertions. There was no independent evidence provided to support any of the offender’s assertions.

61. Other guiding principles from Imbornone are as follows:

[57]   This Court has frequently said that untested out of court statements made to third parties should be treated with caution. Although it should be a principle that is well known and understood it seems necessary to restate it. The following statements are derived from the authorities:

…

(2)   Statements to doctors, psychologists, psychiatrists, the authors of pre-sentence reports and others, or assertions contained in letters written by an offender and tendered to the court, should all be treated with considerable circumspection. Such evidence is untested, and may be deserving of little or no weight: R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174 at 185, [40]-[41]; R v Elfar [2003] NSWCCA 358 at [25]; R v McGourty [2002] NSWCCA 335 at [24] – [25].

(3)   It is open to a court in assessing the weight to be given to such statements to have regard to the fact that an offender did not give evidence and was not subject to cross-examination: Butters v R [2010] NSWCCA 1 at [18]. It is one matter for an offender to express remorse to a psychologist or other third party and quite another to give sworn evidence and be cross-examined on the issue: Pfitzner v R [2010] NSWCCA 314 at [33].

…

Intoxication

62. In determining the appropriate sentence for an offence, the self-induced intoxication of the offender at the time the offence was committed is not to be taken into account as a mitigating factor as provided in s 21A(5AA) of the Crimes (Sentencing Procedure) Act. The Crown submitted that the murder of Tina would not have been committed but for the intoxication. It is submitted that the substantial and operating cause of the killing of Tina was the self-induced intoxication

63. Counsel for the offender made no specific submissions in response to this other than mentioning that the offender was depressed and was resorting to alcohol to deal with it.

64. I accept the submission of the Crown on this issue. It is consistent with the opinion of Dr Furst, psychiatrist, who assessed the offender in March 2017, that “the offender was aware of his actions and was also aware of the wrongfulness of his actions, being driven by anger and possibly intoxication”.

65. There is evidence that the offender appeared to be drunk, described by Daniel as “stumbling on his feet with slurred speech” (quoted by Dr Furst in his report). Mr Machlin, psychologist, offered his view based on his interpretation of the history of the events that he was given and his review in November 2017, that there was present “a degree of adjustment disorder with depressed mood”. However, Dr Furst, who reviewed the offender much closer to the events did not reach any such conclusion.

66. I accept the view of Dr Furst that the offence was committed as a result of aggression which came about due to the level of intoxication. I do not place any reliance upon the presence of an adjustment disorder as having any role by way of mitigation.

Victim Impact Statements

67. I have received very moving statements from Tina’s son Daniel, her mother Helen Kontozis, and her brothers James, Nicholas and George. Once again, I thank the authors of those statements for sharing their pain and grief and for their courage in attending court to read them or having them read in their presence.

68. It was very evident how loved and admired Tina was, given the very full courtroom on both occasions of the sentencing hearing, and the very full courtroom today.

69. Tina was the youngest of four children, and Helen Kontozis’s only daughter. As said by Helen, “a mother should never expect to have to bury her child, but I was dealt one of the cruellest burdens of burying my baby girl”.

70. Helen describes herself as a mother who is “shattered, who has lost her only daughter by a selfish bully in the most barbaric and traumatic manner”. She spoke of her pain at the loss of her daughter stolen by someone who had no right to take it, and her distress that she will never be able to share Christmas, Easter and special days together again. Her heart has been ripped out.

71. Daniel described his feelings of overwhelming sadness and disbelief, feeling lost and depressed, and the pain of grieving that he endures. He gave a beautiful insight into the type of person Tina was: “I miss hearing her joyous voice, her constant laughing, her amazing cooking and wonderful sense of humour. Mum loved to dance, she loved the beach, and she loved to laugh. The biggest impact in my life that will last forever is losing my mum”. He described her as “A bright shining light who genuinely brought happiness and joy to everyone she touched”.

72. Tina’s brothers describe Tina as a philanthropist helping the community and an amazing person and a soul mate. Her brothers Nick, George and James share their horror at the terror and trauma Tina would have endured in her final moments, and they wished that they could have been able to be there protect her.

73. Many other people in the courtroom have also no doubt felt these feelings of loss, anger, sadness and helplessness. This is the impact of this senseless, brutal, appalling killing on the immediate family and friends of Tina.

74. The law allows the suffering of a victim’s family and friends to be taken into account, if it amounts to what the law describes as “an aspect of the harm done to the community”. I accept that the impact on Tina’s family is an aspect of harm done to the community.

Deterrence and domestic violence

75. As observed in R v Archer [2015] NSWSC 1487 by her Honour Wilson J:

Sadly, it is rare that a week goes by in Australia without a woman somewhere in the country being murdered by her spouse or partner. Violent and non-fatal attacks by persons known to the victim are also common. That is something of which we as a community should be ashamed and which the courts must seek to address when sentencing offenders such as Mr Archer.

It is incumbent upon this Court to clearly signal the community’s intolerance of domestic violence. The High Court has recently given powerful expression to the need for the courts to denounce domestic violence … in Munda v Western Australia [2013] HCA 38,

“A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fuelled destruction of a woman by her partner. A failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the state to vindicate the human dignity of the victim; and to impose a lesser punishment by reason of the identity of the victim is to create a group of second-class citizens, a state of affairs entirely at odds with the fundamental idea of equality before the law.” (per French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ)

(Sentence judgment, [174]-[175])

76. It has been observed that it is the responsibility of the courts to protect and preserve human life and to punish those who unlawfully take it: R v Dawes [2004] NSWCCA 363 at [31].

77. As the Crown submitted, the sentence I impose must reflect the need for both general and specific deterrence. It was submitted that both general and specific deterrence should be reflected not just in the overall sentence, but in the non-parole period of the sentence: R v X [2003] NSWCCA 56 at [30] per Barr J.

The offender’s circumstances, remorse and prospects of rehabilitation

78. The offender is now 53 years old. I have taken his age into account in the sentence that I give.

79. He was an average student and left school at the end of year 10. He worked as a fitter and turner, a technician and a security guard as well as in a tile shop and a transport warehouse.

80. He gave a history of depressive episodes in the 1990s requiring medication and “feeling depressed” over the last one to two years and drinking more to compensate. The offender has given accounts of head injuries in his past but a CT scan from 2014 is essentially normal. He related to Dr Furst that he had been drinking daily over the last two to five years generally including half a bottle of champagne and a six-pack of beer and bourbon most days.

81. He was observed to have alcohol withdrawal symptoms in custody in the days after the offending

82. The significance of these matters is that the offender was aware that he had issues with alcohol. For the offences committed in August 2015 involving his attack on Daniel leading to the AVO, it was or should have been clear to him that alcohol use leading to violence was a significant problem and a recurring issue. It appears however that the offender had done little, if anything, to address his alcohol abuse problems and anger issues.

83. I accept the submission made by the Crown that the offender’s failure to address these issues, combined with the apparent disdain with which he held authorities and the legal system in place to protect victims from alcohol related violence, is clearly shown in his letter of 20 May 2016 where he attempts to shift blame in an appalling fashion onto the police “overreacting and exaggerating the facts and charges”.

84. All of these matters lead me to the view that there is little if any proof of prospects of rehabilitation, but I accept that being in custody and away from alcohol access may lead to some little prospects.

The offender’s late plea of guilty

85. Section 21A(3)(k) of the Crimes (Sentencing Procedure) Act provides that the entry of a plea of guilty is a mitigating factor. Section 22(1) requires me to take into account the fact of the plea, the timing of the plea, and the circumstances in which the plea was entered, with a consequence that the Court may impose a lesser penalty than it would have otherwise imposed.

86. It is common practice to quantify the reduction of a sentence imposed on an offender because of a plea of guilty: R v Thomson; R v Houlten (2000) 49 NSWLR 381; 115 A Crim R 104; [2000] NSWCCA 309 at [160] per Spigelman CJ. Two factors affecting the level of discount afforded are the timing of the plea and the likely length and complexity of the trial that the plea avoided.

87. In respect of the timing and circumstances of the plea, the offender entered a plea of not guilty on 7 July 2017. That was converted to a plea of guilty on 23 August 2017. The trial had been fixed to commence on 28 August but had been pushed back to 4 September 2017. This is against a background of arrest on 25 April 2016. He was committed for trial on 4 May 2017.

88. On 17 August 2018, an adjournment application was made on behalf of the offender. Mr Brewer raised the potential for further exploration of some psychological and cognitive issues. This application was refused for the reasons set out in the judgment of Johnson J: R v Boyd [2017] NSWSC 1099.

89. The guilty plea followed seven days later. I have factored into my analysis the lateness of the guilty plea, the apparent perception held by the offender’s legal representatives that further medical or psychological assessment of the offender may have been warranted, and that this may have had some delaying effect on the guilty plea.

90. In consideration of the guidelines set out in R v Thomson; R v Houlten, I have taken the guilty plea into account. A range of 10 to 25% reduction for a plea of guilty is mentioned in the legislation. I have concluded that in this case, there was some utilitarian value still served as the two to three week trial did not have to proceed. I apply a 10% discount.

Totality

91. Another aspect I need to address is the degree to which the criminality of the murder of Tina can be reflected by the sentence for the attack on Daniel, and the driving offence applying Cahaydi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1. This is, in my view, limited. Whilst there is some overlap given that events involving Tina and Daniel occurred close in time and at the same place, they entailed violent attacks on two separate individuals. Daniel was entering his own home, and the attack was made on him in the context of him bravely trying to go to the aid of his mother. The driving offence which occurred the following day is a serious example of an offence which creates enormous potential danger to motorists and pedestrians over a considerable period of time and reflects a selfish disregard for the safety of others.

91. The Crown submitted there should be a level of accumulation and limited concurrence in relation to the sentences on the three counts and I accept this submission.

Sentence

93. Before proceeding formally to sentence, I will indicate my intentions and the general effect of the sentences I will impose.

94. Pursuant to s 22 of the Crimes (Sentencing Procedure) Act, I have reduced the individual sentences and their total cumulative sentence by the 10% I have mentioned, to recognise the guilty plea entered shortly before the date fixed for trial.

95. The total sentence, that is the non-parole period plus balance of term for the murder of Despina Kontozis, will be 30 years. The total sentence for the wounding with intent of Daniel Boyd will be 6 years and 3 months. The total sentence for the police pursuit dangerous driving offence will be 18 months.

96. Because the two offences involving Tina and Daniel occurred within a relatively short period of time there will be some concurrency between the two sentences. However, because of their nature being two separate violent attacks, there will be an accumulation of 2 years. The driving offence is entirely separate, and there will be an accumulation of 1 year, with a short period of 6 months to be served concurrently. It is unnecessary to state a non-parole period for that offence given the sentences for the other offending.

97. The sentencing proposal will be achieved by commencing the sentence for the assault upon Daniel 1 year after the driving offence and the sentence for the murder of Tina 2 years after the sentence imposed for the wounding with intent. This will result in a total effective head sentence of 33 years.

98. I have made no findings of special circumstances, nor was any submission made that I should.

99. After the partial accumulation of the sentences, the total effective non-parole period will be 25 years and 6 months.

100. There was an agreement that these sentences should commence on 27 July 2017.

101. Stephen James Boyd:

1. In respect of count 4, driving in a manner dangerous to the public knowing police were in pursuit, you are sentenced to a fixed term of imprisonment of 18 months commencing on 27 July 2017 and expiring on 26 January 2019.

2. In respect of count 2, the wounding of Daniel Boyd with intent to cause grievous bodily harm, you are sentenced to a non-parole period of 5 years and 3 months commencing on 27 July 2018 and expiring on 26 October 2023 with a balance term of one year commencing on 27 October 2023 and expiring on 26 October 2023.

3. In respect of count 1, for the murder of Despina Kontozis, you are sentenced to a non-parole period of 22 years and 6 months commencing 27 July 2020 and expiring 26 July 2043 with a balance term of 7 years and 6 months commencing on 27 July 2043 and expiring on 26 July 2050.

4. You will become eligible for release to parole at the conclusion of the non-parole period for count 1.

5. I am required to advise you that the provisions of the Crimes (High Risk Offenders) Act 2006 (NSW) applies to the offence of murder and that you may be subject to its provisions at the end of the sentence that I have imposed.

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Amendments

18 April 2018 - Added citation at [88] and to cover sheet; added (No 2) to case title.

10 October 2018 - Typographical error at [56].

Decision last updated: 10 October 2018