R v Toki

[2001] NSWSC 1036

CITATION:	R v Toki [2001] NSWSC 1036
FILE NUMBER(S):	SC 070001/00
HEARING DATE(S):	02/11/01
JUDGMENT DATE:	9 November 2001
PARTIES :	Regina v Martin Marino Toki
JUDGMENT OF:	Howie J at 1

COUNSEL :	C. Maxwell QC - Crown P. Zahra SC - Accused
SOLICITORS:	S.E. O'Connor - Crown Legal Aid Commission of NSW - Accused
CATCHWORDS:	Sentence for conviction of murder
LEGISLATION CITED:	Crimes Act 1900 - s 23A Crimes (Sentencing Procedure) Act 1999 - s 44
CASES CITED:	Veen v The Queen (No. 2) (1988) 164 CLR 465
DECISION:	See para 42.

THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

HOWIE J

FRIDAY 9 NOVEMBER 2001

070001/00 R v MARTIN MARINO TOKI

SENTENCE

1    HIS HONOUR: On 10 November 2000, that is one day shy of 12 months ago, a jury convicted the prisoner of the murder of Pauline Anne Croarkin. That offence was committed on 18 January 1999. Today the prisoner is finally to be sentenced for that offence.

2    I should indicate at the outset of these remarks that the delay in the sentencing of the prisoner is completely unacceptable. There is considerable public interest in the sentence for a criminal offence being imposed as soon after the commission of that offence as is reasonably possible. The delay is not due in any way to the court. The evidence in this matter was taken only last Friday. Up until that date, on each occasion that this matter was listed for hearing either one or other of the parties was unable or unprepared to proceed. I accept that there have been difficulties in obtaining psychiatric reports about the prisoner or in having the psychiatrists who have prepared reports available to give evidence. The obtaining of the reports has been made more difficult because of the placement of the prisoner within corrective services establishments.

3    However, so concerned was I at the continued delay in the finalisation of this matter, that on one occasion I was not prepared to grant a further adjournment unless the prisoner was brought to court and the application was made in his presence and with his consent. I appreciate that the prisoner has been serving a sentence of imprisonment for an unrelated matter during the period of his remand and that he must have been aware from the moment of his conviction for murder that a very lengthy sentence would be imposed upon him. But these factors do not justify or excuse the extraordinary delay. I can only presume that the prisoner has been left in a state of uncertainty as to his ultimate fate over this period and I must take that into account when determining the appropriate sentence to now impose upon him.

4    The facts upon which the prisoner is to be sentenced can be briefly stated and are non-controversial in light of the jury’s verdict. On 17 January 1999 ambulance officers, who had been summoned by two telephone calls made by the prisoner, attended a flat in Phelps Street, Surry Hills where the prisoner was residing with the victim, his de facto wife. The ambulance officers arrived at the premises at about 12.30pm.

5    The victim was found lying naked on the floor covered by a sheet. She was in a state of decreased consciousness and suffering from multiple injuries. She had a bleeding wound to the back of her head. There was significant bruising over her arms and legs and she had sustained numerous fractured ribs. It was apparent that she was suffering the effects of a brain injury and was convulsing.

6    The prisoner was present and told the ambulance officers that the deceased had suffered a fit while having a shower. He said that both he and the deceased had taken ecstasy the night before and they had reacted badly to it. The prisoner was apparently suffering from abdominal pain and on occasions could be heard retching in the bathroom.

7    Shortly after the deceased was removed to the hospital the prisoner spoke to Constable Agnew. He told the officer that he was with the deceased at a house the previous night and they had been given ecstasy mixed with a white powder. He left those premises after an argument but the deceased remained because she was in his words “pretty wasted”. The prisoner came home but returned in the morning to take the deceased home. He had cut his thumb when he broke the window in the front door of the premises because he said the occupants would not let him inside. He said that when they arrived home the deceased was all right for a while, but then she “went all crazy”. She was coming off the drug and was in pain. The prisoner said he also did not feel well and they both got into the shower. The deceased then had a fit and fell on top of him, hitting her head as she did.

8    The prisoner was later himself conveyed to hospital because of his complaints of pain to his abdomen. An examination of the prisoner did not reveal any significant injury or illness and he was discharged. Immediately thereafter he was arrested by police and taken to Surry Hills Police Station where he was interviewed. He substantially repeated the account he had previously given to Constable Agnew although in more detail. He denied that he had assaulted the deceased in any way and maintained that she had injured herself when falling in the shower.

9    The deceased died at about 3 am on 18 January. When the prisoner was informed of this fact he was so distressed that the custody officer at the police station obtained the assistance of the crisis centre at St Vincent’s Hospital to tend to him.

10    The premises, which the prisoner had visited with the deceased on 16 January, were in Crown Street, Surry Hills about 350 metres from the flat in Phelps Street. Ms Ferry and Mr Craft lived there together. The prisoner and the deceased had met these two persons, with whom they were casually acquainted, at a local hotel during that afternoon. After having consumed a substantial amount of alcohol, the four decided to go to the premises at Crown Street so that the two men could watch wrestling on television and the females could chat together. They purchased some more beer on the way.

11    The four arrived at the premises at about 5.30pm. They sat in the lounge room in front of the television drinking beer and talking. At about 7 pm the prisoner suddenly stood up and, facing Ms Ferry and the deceased who were talking on a lounge, he said “Don’t talk about my relationship”. He then angrily left the premises. The deceased remained behind at the flat.

12    About an hour later the deceased asked whether she could make a telephone call and was shown by Ms Ferry into the bedroom. Records show that two phone calls were made from the Crown Street premises to the flat in Phelps Street one just before and one just after 8 pm. There was other evidence before the jury that proved that the prisoner was at those premises sometime shortly after 7 pm.

13    About 5 minutes after the deceased had entered the bedroom to make the telephone call, Ms Ferry entered the room and found the deceased in a distressed condition. She asked Ms Ferry if she could have a safe house that night, as she did not want to go home. Ms Ferry sought to comfort the deceased and they sat talking and drinking beer until the deceased fell asleep sometime before midnight. Later Ms Ferry and then Mr Craft went to sleep in the bed alongside the deceased.

14    In the early hours of 17 January Mr Craft and Ms Ferry were awoken by the sound of smashing glass. A short time later the prisoner came into the bedroom. Mr Craft, Ms Ferry and the deceased were together in the bed, naked. The prisoner told the deceased to get dressed because they were leaving. The deceased got out of bed, dressed and then left with the prisoner. She was not seen again until the ambulance officers attended at Phelps Street.

15    The deceased died from an injury to her head that caused bleeding within her brain. Dr Botterill, who conducted an autopsy on the deceased, summarised his findings as follows:

“In plain terms autopsy findings included numerous extensive bruises over the body and the limbs, a collection of blood over the right side of the brain, many broken ribs with a collection of blood in the right chest cavity. The bruises present over the body were both days old and more recent. Some of the patterned bruises, particularly over the lower limbs, were suggestive of use of a rod like implement the remaining bruises might be the consequence of other blunt force injury.”

16    The doctor found the deceased had 79 injuries of which 12 were consistent with having been caused by medical intervention. There was substantial fresh bruising over the whole of the deceased’s body. Some of the bruising was consistent with knuckle marks and some with finger grips. Bruising to the back of her hands and arms were consistent with defence wounds. She had a major wound to the back of her head and a laceration to her chin. There were 11 fractured ribs.

17    Some of the bruises to the left leg and buttock of the deceased were consistent with having been caused by a piece of wood that was found in the flat at Phelps Street. Photographs of this object appear to show a bloody handprint upon it. Analysis of the blood found on this item was consistent with it having come from the prisoner. The prisoner was right-handed and was bleeding from his right thumb after he broke into the Crown Street premises.

18    There was evidence that attempts had been made to clean up the flat at Phelps Street before the ambulance officers arrived. There were bloodstains on the wall, which appeared to have been wiped, and there was blood on a sponge found in a sports bag. Bloodstained clothing was found in a pillowslip in the kitchen.

19    In short the evidence revealed overwhelmingly that the prisoner beat the deceased to death in the flat in Phelps Street some time after they returned there from Crown Street. In light of the extent and nature of the injuries she sustained, I believe that the jury must have been satisfied beyond reasonable doubt that the prisoner intended to kill her. This is notwithstanding the obvious remorse shown by the prisoner when the ambulance officers arrived and his endeavours to assist her once he had come to his senses and realised what he had done.

20    These events have to be seen in the context of the relationship between the prisoner and the deceased existing at the time of her death. They entered into a de facto relationship in mid 1996. From that time until a few months before her death the deceased had on numerous occasions suffered injuries at the hands of the prisoner. Either as a result of these injuries or fearing that the prisoner would assault her, the deceased at various times sought shelter with friends, her family in England or at a woman’s refuge. However, the prisoner always attempted to find her and she always returned to live with him shortly after leaving him. Notwithstanding the attacks upon her, the deceased refused to seek assistance from the police and on at least one occasion lied to the police about who was responsible for the injuries. I believe that the prisoner was aware that he could assault and injure her with impunity.

21    The events of the 16 and 17 January, therefore, can be seen as part of a history of repeated acts of violence by the prisoner toward the deceased. He is not to be punished more severely on that account but his attack upon her on the occasion that led to her death cannot be viewed as an isolated incident or an aberration on his part. Nor was this the first time that the prisoner had used a weapon to inflict injuries upon her.

22    I have no doubt that on this occasion the prisoner was enraged by what he perceived to be the deceased’s betrayal in speaking to Ms Ferry about their relationship together and believed that the deceased had or would reveal his violence toward her. He was still clearly angry when he returned to the Crown Street premises on the morning of 17 January as is evidenced by the way he gained entry. Despite his repeated assertions to the contrary and the jury’s finding that he was not acting under provocation, I have no doubt that what he saw in the bedroom further inflamed him.

23    I accept that the prisoner did love the deceased and that he was genuinely concerned about her welfare as a result of the injuries he inflicted upon her in his anger. He did contact the ambulance while the deceased lay dying and I believe that his concern and distress evidenced in those calls was not just a reflection of self-interest. His grief over her death was genuine and I believe that he feels her loss even now. Dr Allnutt, a psychologist who was treating the prisoner at one stage while in custody, believes that he still needs assistance to come to grips with his loss. Despite his refusal to accept responsibility for the death of the deceased at his hands, I am satisfied that the prisoner is remorseful for what he did, just as he was each and every time the deceased returned to him following his attacks upon her.

24    However, the facts indicate that the prisoner violently beat a defenceless woman both with his fists and with the use of a piece of wood as a weapon. He inflicted injuries over the whole of her body both externally and internally. The prisoner is a man with a very powerful physique and he would be possessed of very considerable physical strength. In contrast the deceased was of short stature and weighed 60 kilograms. The medical evidence was that significant force would have been required to inflict some of the injuries found upon the deceased. The prisoner himself had bruising to the knuckles of one hand and I believe they were sustained as he inflicted injuries upon the deceased in this attack.

25    The offence, however, serious as it is, is not objectively within the worst category of murder and the Crown Prosecutor has acknowledged this to be the case. It was not premeditated or planned, although I have little doubt that when the prisoner went to Crown Street to recover the deceased he intended to punish her for what he believed to be her betrayal of him the evening before. Notwithstanding that the jury convicted the prisoner of murder, I believe there was a loss of control on his part such that his violence was more extreme than he had ever used against the deceased at any time before that occasion. I believe that in part this was a reaction to what he saw when he entered the bedroom in Crown Street. However, while the fact that the prisoner acted under a loss of self-control is mitigating, the extent of the mitigation is not very great in this case given the nature of the injuries inflicted upon the deceased and the history of his relationship with her.

26    The issue of intoxication was placed before the jury on the question of whether the prisoner had formed a state of mind that would support the charge of murder. The evidence of the prisoner, that he had taken some substance thought by him to be ecstasy the night before, was supported by the finding of traces of MDMA in his blood after his arrest. However, I do not believe that the prisoner was affected by that drug or any other substance at the time that he inflicted the injuries upon the deceased. Apart from complaints as to the physical effect of the substance he had consumed on him to ambulance officers and police who attended after the killing, the prisoner has never suggested that he was otherwise affected by alcohol or drugs at the relevant time. There was nothing in what he said or did either before or after the killing that might indicate that his behaviour was influenced by any substance to a significant degree. I do not accept that he suffered a blackout in this period or that he has any gaps in his memory for the events that occurred after he left the Crown Street premises on either occasion.

27    If in truth he cannot recall some of the incidents that gave rise to the death of the deceased, it is simply because he does not wish to recall them. I believe there is an element of denial taking place in the accused’s understanding of the events surrounding the death of the deceased.

28    In any event there is little mitigation to be found in offences committed while under the influence of a drug or some other illegal substance voluntarily taken for a recreational purpose. This is particularly so when, as in the prisoner’s case, there is a history of violent behaviour which appears unrelated to drug or alcohol use except that the use of such substances might make him more prone to lose his temper.

29 Despite the seriousness of the objective facts of this matter, the offence is not one where the objective culpability of the prisoner is sufficient to attract the operation of s 61(1) of the Crimes (Sentencing Procedure) Act 1999. The prisoner, therefore, should be sentenced to a determinate term that reflects the objective seriousness of his conduct, the loss of human life and the need for general deterrence in relation to offences of domestic violence. There is also a strong argument that the sentence should carry with it an element of specific deterrence because of the prisoner’s history of violent behaviour. But if the prisoner is not deterred from his resort to violence by the fact that he has brutally killed the woman for whom he genuinely felt great affection then nothing will deter him.

30    The prisoner is aged 34 years. He was born in the Cook Islands. He is the youngest in a large family. Both parents are now deceased, his mother dying two years ago from diabetes. The prisoner lived most of his adolescence in New Zealand coming to Australia with his mother in 1987 when he was then aged 15. He worked in manual labouring positions until about 2 years before the murder when he became unemployed and remained so until his arrest.

31    The prisoner has consumed alcohol to excess since he was 15 years of age. He has also been a recreational user of illicit drugs since his early teens. His drugs of choice are cannabis and LSD. He has never attended any rehabilitation program and has until recently showed little or no interest in avoiding the use of alcohol or drugs. He was given the opportunity of undertaking a methadone course while in custody but declined it.

32    The prisoner has a criminal record dating from 1982 when the Children’s Court placed him on probation for an assault. Since then there has been a number of court appearances for offences of violence both to persons and property. He received a short sentence for dishonesty offences in Queensland in 1986. In 1991 he was sentenced to a term of imprisonment for maliciously inflict grievous bodily harm. In 1994 he received a gaol sentence for robbery and assault charges. He has been dealt with for offences of violence against prison officers whilst serving sentences. In September 1999 he was sentenced for an offence of robbery with violence and is currently serving that sentence which was backdated to the date of his arrest for the charge of murder. He would have been eligible for release to parole from that sentence on 18 March last but remained in custody having been refused bail by me following his conviction of murder.

33    This record shows that the prisoner’s use of violence was not restricted to his relationship with the deceased. I do not know the facts of the matters for which he has been sentenced before but clearly they were serious offences. That record and the history of his violence against the deceased clearly raises a very real question as to whether the prisoner will remain as a danger to society after his release from the sentence I am about to impose and whether there should be an element of preventative detention contained in that sentence. The offence is serious enough and of such a nature that there could be no objection in principle to the sentence being used to protect the community from the prisoner provided that the sentence imposed is proportionate to the offence committed: Veen v The Queen (No 2)(1988) 164 CLR 465.

34 Three psychiatrists were called to give evidence before me on sentence concerning this particular issue. There was also psychiatric evidence before the jury on the question of whether the prisoner had proved the defence of substantial impairment under s 23A of the Crimes Act. I have no doubt that the jury rejected that defence because they were unpersuaded that the prisoner suffered from any mental condition that fell within the terms of that provision. The evidence in support of that defence came from Dr Clark and his interpretation of the results of an MRI scan performed upon the prisoner during the course of the trial. The evidence called by the Crown at the trial effectively contradicted Dr Clark’s opinion that the prisoner may have been suffering from an organic disorder, known as frontal lobe epilepsy. Although Dr Clark still maintains that view, I am unpersuaded that his opinion has any reliable basis. There was even less to support it in the evidence presented on sentence than there was at the trial. Dr Allnutt, who gave evidence for the prisoner on sentence, did not agree with Dr Clark’s opinion. A recent MRI showed results that were within normal limits.

35    However there was some evidence before me that the prisoner may have been suffering from some form of mental illness while he has been on remand. Dr Allnutt believes that the prisoner has a type of psychosis that involved auditory hallucinations. His evidence was that the prisoner has been responding well to antipsychotic medication that has recently been prescribed for him. However, Dr Wong does not believe that the prisoner is suffering from any mental disorder. I tend to favour the evidence of Dr Allnutt on this matter, as he was for a period the prisoner’s treating psychiatrist.

36    However, it seems to me that the resolution of that question has very limited relevance to the present task. There is no suggestion that at the time of the murder or on any other occasion that the prisoner was inflicting injuries upon the deceased that he did so under the effects of a mental disorder. Nor is there any evidence that the condition identified by Dr Allnutt was present at any time before the murder or has in any way contributed to his tendency to violence.

37    In my view, the only relevance of the evidence of Dr Allnutt is that over the last six weeks while taking the antipsychotic medication, the prisoner’s behaviour has improved. He now appears to be more receptive to assistance, he displays more insight into his problems, particularly his use of illegal drugs, and, most importantly, he has not displayed his usual aggression to the correctional officers who are in charge of him. To this extent Dr Allnutt believes that the prisoner, with continued medication, will further improve and is likely to go into remission so far as any symptoms of the psychotic illness are concerned. It may eventually transpire that there is found to be some psychiatric or psychological basis for the prisoner’s behaviour, such as an attention deficit disorder, that may be stabilised by the use of drugs.

38    However, the prisoner’s aggressive behaviour is of continued concern, especially, if on release he enters into another close relationship such as he had with the deceased. His failure even now to accept that he caused her death does not engender any confidence that he can be rehabilitated so far as this aspect of his personality is concerned. But I am not satisfied that I should consider the prisoner to be of such continued dangerousness that I should impose a sentence of preventative detention. The difficulty of determining future dangerousness is well recognised. The prisoner will be serving a very lengthy sentence as a result of this offence and he will not be eligible for parole for many years. I am not satisfied that the evidence before me is such that I should take the responsibility upon myself for determining at this point in time that the prisoner should remain in custody longer than is otherwise appropriate simply for the protection of the community.

39    The recent change in the prisoner’s behaviour does give him the opportunity of addressing his problems such that he may be able to convince the Parole Board when his time comes to be considered for release that he can live in society as a peaceful member of the community and pose no threat to others. At the present time I do not believe anyone could come to that conclusion with any degree of confidence. But with time and dedication by the prisoner, his situation may improve sufficiently to allow him to be released on parole at the end of the non-parole period I specify. Had it not been for the evidence of Dr Allnutt I would have considered setting a non-parole much closer to the total sentence that would normally be the case for a person serving a very lengthy term in custody.

40 However, I am not persuaded that there are any special circumstances in the present case. The evidence of Dr Allnutt might have given some support for the finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act were the prisoner not to be sentenced for such an offence as is before the court. The total sentence that must be imposed to reflect the objective seriousness of the prisoner’s crime is of such a length that a very long parole period will be the result even if the usual proportion of the non-parole period to the total sentence is maintained. In other words a non-parole period being three quarters of the total sentence will result in a parole period that will be more than adequate to address any issues remaining when the prisoner is eligible for release to parole. Nor is there any other reason to justify a lesser non-parole period than one of that length.

41    As I have indicated the prisoner has been serving a sentence for an unrelated offence. He was on bail for that matter at the time of the killing. It is appropriate in my view that the sentence I am to impose should commence from the date he would have been eligible for parole on the existing sentence. However, I take into account the principle of totality both in fixing the total term of the sentence and the non-parole period he is to serve.

42    On the offence of murder the prisoner is sentenced to 24 years imprisonment from 18 March 2001. There is to be a non-parole period of 18 years to date from that date and to expire on 17 March 2019 the date upon which the prisoner is eligible for release to parole.

************

Last Modified: 11/16/2001