Regina v Mailes

[1999] NSWSC 942

CITATION:	REGINA v MAILES [1999] NSWSC 942
CURRENT JURISDICTION:	Criminal
FILE NUMBER(S):	70037/97
HEARING DATE(S):	10 September 1999
JUDGMENT DATE:	10 September 1999
PARTIES :	The Crown Graham Edward Mailes
JUDGMENT OF:	Newman J at 1

COUNSEL :	P Conlon (Crown) T Golding (Prisoner)
SOLICITORS:	Director of Public Prosecutions (Crown) Legal Aid Commission of NSW (Prisoner)
CATCHWORDS:
CASES CITED:	R v Twala, unreported, 4 November 1994 R v Fernando, unreported, 18 April 1999 Veen v R (No 2), (1988) 164 CLR 465 at 477 R v Scognamiglio, (1991) 56 A Crim R 81 R v Previtera, unreported, 27 May 1997
DECISION:	Head sentence of 25 years constructed as follows: minimum term of 18 years penal servitude commencing 28 march 1996 and expiring 27 March 2014. An additional term of 7 years commencing 28 March 2014 and expiring on 27 March 2021

THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

NEWMAN J

FRIDAY, 10 SEPTEMBER 1999

70037/97 - REGINA v Graham Edward MAILES

SENTENCE

1    HIS HONOUR: At Wagga Wagga on 19 May this year, following a trial which had commenced on 27 April, a jury found the prisoner Graham Edward Mailes guilty of the murder of Kim Louise Meredith at Albury on 23 March 1996.

2    Earlier in the year, in February in Sydney, another jury, following a hearing which lasted a number of days, found the prisoner not unfit to stand trial. I was the presiding judge in both of these proceedings. The prisoner is now to be sentenced.

3 The maximum penalty prescribed by the Crimes Act for the crime of murder is life imprisonment. However that penalty is not mandatory. It is now my duty to find the facts of the matter consistent with the jury’s verdict. In so doing I have utilised the criminal standard of proof, namely, proof beyond reasonable doubt.

4    I should say at the outset that the Crown case presented at the trial was overwhelming. I have no doubt that the jury’s verdict was a correct one.

5    I turn to the facts as I find them. As of 23 March 1996 Kim Meredith, a nineteen-year old woman, was a student at Latrobe University studying Business Management/Hospitality. Additionally, she, like many students of her age, had a part-time job. Hers was as a casual bar assistant at the Commercial Hotel in Albury.

6    On the evening of 22/23 March 1996 she worked a shift at the hotel which commenced at 8.30 pm and finished after midnight. At the completion of the shift she drove her car to another Albury hotel, the Terminus, where she socialised with friends. Earlier in the evening she had indicated to other friends that she would see them at another Albury hotel called Sodens.

7    The Terminus Hotel is about 150 metres from the Commercial and Sodens is about 600 metres north from that establishment ie 450 metres from the Terminus Hotel.

8    Eventually Kim Meredith departed the Terminus Hotel, but the exact time of that departure is not known. What is certain is that she departed on foot. Her car was still parked, when located, near the Terminus Hotel later on 23 March. That she was heading towards Sodens Hotel is to be inferred from where her body was found and her previous stated intentions.

9    Her body was found in the yard of premises on the corner of Swift and Macauley Streets, Albury. Sodens Hotel is located on the north-west corner of the urban block encompassed by David, Wilson, Swift and Macauley Streets. A reasonably direct route from the Terminus Hotel to Sodens Hotel would involve a passage west down Dean Street, a turn north at Macauley Street, then a turn to the west at Wilson Street and thence to Sodens Hotel.

10    The prisoner was observed alone at the Terminus Hotel, leaving that establishment somewhere between 1.45 am and 2 am. Earlier in the evening he had been in the company of a friend, one Damian Bennett. Together they had visited a number of hotels, parting company sometime around midnight near a hot dog stand by QEII Square in Dean Street where that street intersects the Hume Highway.

11    The prisoner was observed to be heading west in Dean Street shortly after 2 am. He was next seen attempting to use an automatic teller machine at the Hume Building Society at 2.40 am. The card he was using to unsuccessfully activate the machine belonged to Kim Meredith.

12    Kim Meredith’s body was found by a patrolling security man at about 3 am at the premises I have already mentioned. She was naked but for her socksand her throat had been cut. She suffered two deep incised wounds to her neck. Such was the severity of the wound to the left side of her neck that it transected the left common carotid artery, left vertebral artery and left jugular vein, the oesophagus and completely transected the trachea exposing and transecting the cervical spinal cord.

13    She was killed under a back window of the premises in the yard, dragged behind a lattice where some of her clothes were cut from her and others removed. She was then placed against a door where she was found. Items of her clothing were found at a variety of locations both within the boundary of the premises where she was killed and in adjoining premises. As I have said she was naked save for her socks.

14    Plainly the prisoner intercepted her on her journey, forced her into the subject premises and then brutally attacked her causing the principal injuries which I have detailed together with other minor wounds resulting, of course, in her death.

15    Whether the prisoner’s motivation for his attack was for sexual gratification or theft is a matter for conjecture. There was no positive evidence of sexual interference. However, the prisoner did remove her clothes and left her propped up against a door. Certainly the prisoner did steal not only her credit card but also her watch, which was subsequently discovered at his aunt’s place at Forbes, where he normally resided. The prisoner did not know his victim. The prisoner did not know his victim.

16    However, one thing is clear. The prisoner intercepted his victim, forced her into the premises, and then used a knife which he had purchased on 21 March in Albury to brutally murder her.

17    Until recently the prisoner has not demonstrated any contrition for his crime. Not only that, he sought to evade the consequences of crime by falsely claiming that he had witnessed another person committing it and identified that person as one Tony Lamont. Mr Lamont and the prisoner had previously been residents of a refuge for persons with intellectual disabilities and behavioural problems, known as Woodstock.

18    He also earlier concocted an alibi which, when demonstrated to be false, he came out with his allegation attempting to implicate Mr Lamont. His allegations relating to Mr Lamont were contained in a video-taped record of interview with police. In my view they were patently false and the jury rightly rejected them.

19    In earlier interviews the prisoner had (as he later admitted to police) falsely attempted to establish an alibi. It was after the falsity of that alibi was clearly demonstrated to him by police that he made his equally false allegations concerning Mr Lamont. He did not give evidence at the trial.

20    Objectively, the facts show that this was a brutal murder. Paramount, in my view, amongst a number of disturbing features relating to the commission of this crime is the predatory nature of the attack which was carried out. I shall return to this feature later in these remarks.

21    Before turning to the subjective features relating to the prisoner I should record that the Crown conceded in the sentencing proceedings that this case does not fall within the category of the worst type of case of murder and thus the sentencing option of life imprisonment is not available to the court.

22    Such was the brutal and predatory nature of the attack that I had great difficulty in accepting that concession. However, having considered what fell from the Court of Criminal Appeal in R v Twala, unreported, 4 November 1994, particularly Badgery-Parker J at 9-12) which was affirmed by that court in R v Fernando, unreported, 14 April 1999 at 148, I have concluded that the prisoner’s intellectual deficits (to which I shall refer in more detail later in these remarks) are such as to provide mitigation in the objective sense which takes this case, serious as it is, out of the category of the worst type of case.

23    I turn then to the subjective material adduced relating to the prisoner. First, his age. He is a young man, now aged twenty-six, having been born on 22 February 1973. This is a matter I have taken into account.

24 Second, his criminal antecedents. Excluding driving offences, they relevantly include a number of convictions for assault and for carry a cutting instrument. While the assaults referred to in his criminal record, of course, stand nowhere near this crime in terms of the criminal calendar they, plus his convictions for carrying a cutting instrument are indicative that this crime should not be regarded as an uncharacteristic aberration on the prisoner’s part. See Veen v R (No 2) (1988) 164 CLR 465 at 477.

25    Third, his intellectual capacity. As I have said I was not only the trial judge but also the judge at the proceedings relating to his fitness to stand trial. Tendered during the course of the submissions made on sentence are reports from Associate Professor Susan Hayes, an extract from her evidence in the fitness proceedings, a report from Thelma Buchanan, psychologist, relating to her assessment of the prisoner as at 15 March 1991 and an extract from the evidence of Dr Bruce Westmore, psychiatrist, at the fitness proceedings. All are agreed that the prisoner has intellectual disabilities. There is disagreement as to the level of those disabilities.

26    Prof Hayes places him in the category of being moderately intellectually disabled but believes he functions at even lower level of disability, namely in the severe range. Thelma Buchanan places him within the mild range of intellectual disability, one higher than Prof Hayes. Dr Westmore, while agreeing that he was in the category of being intellectually disabled, placed his ability to function in the community at a higher level than that of Prof Hayes stating that the prisoner was predominantly independent.

27    Having had the advantage of seeing and hearing the evidence of Prof Hayes and Dr Westmore at the fitness proceedings, I, as I believe the jury there did (as is indicated by their finding) prefer the analysis of Dr Westmore.

28    Having observed the conduct of the prisoner during both proceedings and having observed his attempt to exculpate himself by calculated mendacity, I find that the prisoner while moderately intellectually disabled is a person who possesses an innate cunning which makes him a potential danger to the community when at large. All the evidence relating to his intellectual capacity indicates that his prospects of rehabilitation are poor.

29    Fourth, he has led a life of privation and loss. His sister gave evidence which I accept, of the devastating effect upon the prisoner of the murder of his father to whom he was close, when the prisoner was aged but eleven years.

30    He has spent a considerable amount of his life in institutions. He was in fact, as his antecedents show, committed to Woodstock by the Children’s Court. He has spent a lot of his life living in the open and, as I have said, his history as contained in the documents tendered on sentence indicates that his past life has been one containing a lot of privation. I take this into account.

31    Fifth, he does have the support of his sister, Mrs Corner, and of Mrs Hope who is a care assistant from the Department of Community Services who has had a long association with the prisoner. Also, he has the support of Mrs Robinson who has known not only the prisoner but his family for many years. I take their support into account.

32    His antecedents, in my view, counter-balance the suggestion made by Mrs Hope that the commission of this crime is entirely out of character.

33    As I have said, with one exception, the prisoner has expressed no contrition for his actions. However, after the verdict Mrs Hope deposed that he expressed sympathy to her for both the victim and her parents. However, this expression of sympathy was done without any admission of his guilt for the crime and must be weighed against the actions he took immediately after the commission of the murder. In my view, having balanced these matters up, I conclude that he is not truly contrite for his actions.

34 Because of his intellectual deficits I agree with the submission made by Mr Golding of counsel on his behalf, that general deterrence is not a factor of great importance here. See what fell from the Court of Appeal in R v Scognamiglio (1991) 56 A Crim R 81. However, this consideration is somewhat muted by what fell from the High Court in Veen No 2. In Twala, Badgery-Parker J stated the law in this way at p 8:

“It needs to be made clear, however, that our law does not permit the imposition of a sentence of preventive detention, and concern that a prisoner upon release may represent a danger to the community cannot justify the imposition of a sentence which is disproportionate to the gravity of the crime.”

35    Then, quoting from Veen (No 1) he said:

“The risk of danger to the community, if established as in my view it is established here, may nevertheless be taken into account in determining what weight may be given to subjective factors which otherwise call for leniency: Veen (No 2); Garforth at pp11-13.”

36    I have, of course, taken into account that the law does not permit the imposition of sentences of preventative detention.

37    I have read the victim impact statements provided by the victim’s parents. Those statements underscore the depth of the tragic affect upon the Meredith family which has flowed from this brutal crime. However, for reasons detailed by Hunt CJ at CL in R v Previtera unreported, 27 May 1997 I cannot take into account the contents of the victim impact statements in coming to my conclusion as to what is the appropriate sentence in this case.

38    The predatory nature of this slaying places it high in terms of criminal culpability. As I have indicated not only do I believe that the prisoner has poor prospects of rehabilitation but will remain a danger to the community whilst at large.

39    I have, as I have indicated, taken fully into the statement of the law by the High Court in this regard in Veen No 2 in determining sentence.

40    The sentence will date from 28 March 1996 the date when the prisoner entered custody. The prisoner’s intellectual disabilities are such as will require considerable supervision on release for a long period of time. I thus believe that special circumstances exist for the purposes of the Sentencing Act and have adjusted the relationship between the minimum and additional terms accordingly.

41    I impose a head sentence of twenty-five constructed as follows: a minimum term of eighteen years penal servitude commencing on 28 March 1996 and expiring on 27 March 2014; an additional term of seven years commencing on 28 March 2014 and expiring on 27 March 2021.

Last Modified: 09/16/1999