Regina v Maskey

[2003] NSWSC 1029

CITATION:	Regina v Maskey [2003] NSWSC 1029 revised - 03/12/2003
HEARING DATE(S):	09/07/03, 10/07/03
JUDGMENT DATE:	11 July 2003
JURISDICTION:	Common Law
JUDGMENT OF:	Newman AJ
DECISION:	Terms of the sentence to be 20 years commencing on 16 December 2001 and ending on 15 December 2021 with a non-parole period of 14 years which expires on 15 December 2015.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Bell, Valera and Peters
PARTIES :	Regina Christopher Stanley MASKEY
FILE NUMBER(S):	SC 70053/02
COUNSEL:	W Creasey (Crown) S Hanley (Maskey)
SOLICITORS:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

NEWMAN AJ

FRIDAY 11 JULY 2003

70053/2002 REGINA V CHRISTOPHER STANLEY MASKEY

SENTENCE

1 NEWMAN AJ: The prisoner, Christopher Stanley Maskey, having pleaded guilty to the murder of his wife, Heather Margaret Maskey, at Medowie on 16 December 2001, is now to be sentenced. The maximum penalty stipulated by the Crimes Act 1900 for the crime of murder is imprisonment for life.

2 Because the crime was committed prior to 1 February 2003, the sentence is to be structured pursuant to the repealed section 44 of the Crimes (Sentencing Procedure) Act 1999, which I will hereinafter refer to as “the Act”. However, the plea having been entered after that date, namely 1 February 2003, section 21A of the Act as it now stands is to be applied in the Court’s consideration of aggravating and mitigating circumstances in determining sentence.

3 My first task in sentencing is to find the facts of the case. In so doing, I have utilised the criminal standard of proof, namely, proof beyond reasonable doubt.

4 The prisoner and his wife were married in February 1989. Three children were born of that union, namely, Toby William Maskey, born 28 July 1990 and two daughters, Tessa Maree Maskey, born 30 October 1993 and Maxine Mary Maskey, born 17 June 1998.

5 I should add that a question relating to the parentage of the last daughter was raised during the sentencing proceedings, to which query I shall turn later in these remarks.

6 The prisoner and his wife resided for the greater part of their marriage in the Newcastle area. The prisoner is now forty-six, having been born on 23 March 1957. He left school at the age of fifteen and went to work for his father, who ran a fruit and vegetable business, together with a hydroponic farm and a chicken farm. Ultimately the prisoner operated his own fruit and vegetable shops, one at Medowie and the other at Salamander Bay.

7 In 1987 he suffered an ankle injury when he fell off the back of a truck. He has suffered a degree of incapacity as a consequence of that injury until the present time.

8 He ceased both businesses in the early ‘90’s. After living off his savings for a time, he ultimately went on the dole and has remained on it until the commission of this crime.

9 The relationship between the prisoner and his wife deteriorated. The evidence indicates that from 1993 on, frequent and fierce arguments happened over a variety of matters, involving, amongst many things, arguments about the schooling of the children, the prisoner’s drinking and gambling habits.

10 Violence accompanied some of these arguments, so much so that both at various stages took out apprehended violence orders against each other. As I understand the evidence, the order which the prisoner took out against his wife arose as a consequence of an assault she carried out against him on 10 October 1999, when she utilised a four pound hammer to attack him.

11 Initially she struck him in the head while he was asleep, then pursued him when he fled the house. Ultimately he sought sanctuary at the house of a neighbour, a Mr Rabbitt, who lived some 85 to 100 metres from the Maskey residence. Mrs Maskey abandoned her weapon at the Rabbitts’ house, discarding it and throwing it underneath Mr Rabbitt’s car.

12 The prisoner suffered a number of injuries in this assault, principally to his head. The prisoner was taken to the John Hunter Hospital, where his head wounds were sutured. While the hospital records were not available to the Court, Dr Chris Levi, a neurologist who examined the prisoner in May 2000, reported that those records reveal that the prisoner on admission was found to have scalp lacerations on his right parietal and left temporal regions. However, no skull fracture was found.

13 A CT scan performed on 8 February 2000 was interpreted as showing an old ischaemic lesion in the right corona radiata. I should add that a later MRI scan, reported on 25 August 2000, demonstrated a benign cyst rather than an infarct.

14 Following this assault, the prisoner has complained of headaches. His general practitioner, Dr Beiers, has, on Dr Levi’s advice, been treating the prisoner with a variety of medications, including Valium, Tegretol and amitriptyline.

15 Dr Wayne Reid, neuropsychologist, assessed the plaintiff last month. To carry out his assessment, Dr Reid availed himself of the relevant medical reports relating to the prisoner’s head injury, and himself, that is Dr Reid, carried out neuropsychological testing. Dr Reid concluded as follows:

“The neuropsychological assessment revealed he has impairment in non-verbal intellectual abilities affecting his visuospatial and visual organisational skills, visual memory, speed and flexibility of thinking and serial auditory learning. The deficits, particularly in the visuospatial, visual memory and visual organisational skills are consistent with brain damage to the right parietotemporal region, the site where he was alleged to have sustained his injury. He strongly denies having any of the above difficulties prior to his assault in October 1999, and on the balance of probability it appears that the deficits shown in the neuropsychological assessment are due to traumatic brain injury from the assault.”

Dr Reid finally observed:

“It is felt, however, that the nature of Mr Maskey’s current cognitive deficits are not of a severity or type to impair his ability to instruct legal representatives and participate in the trial proceedings.”

16 I have dealt at some length with the material relating to the assault on 10 October 1999 and its aftermath at this stage of my remarks in order to illustrate the background to the events of 16 October 2001. Of course, in analysing the ramifications of the assault of 10 October 1999, matters relating to the credibility of the prisoner are to be taken into account, as they must be in relation to other factual issues. I shall return to this question later in these remarks.

17 As I have said, Heather Maskey also took out apprehended violence orders against the prisoner. Relevantly, those orders were obtained following threats made by the prisoner on telephone conversations, recordings of which were played to the Court. The prisoner’s remarks during those conversations were, as I would find them, indeed threatening. The prisoner breached those orders, and on 16 October 2001 entered into a two year bond following his conviction for breach. Again, I shall return to the matter of these bonds later in these remarks.

18 While the prisoner and his wife remained together after the relationship continued to deteriorate, ultimately, some time before Christmas 2000, a final separation occurred. The son, Toby, remained with the prisoner and the two girls resided with the deceased. One of the matters which led to the threatening phone calls made by the prisoner was disputation over visiting arrangements involving the girls.

19 Prior to the couple finally separating, they resided at Wangi Wangi. Some little time after they separated, the prisoner leased the premises at Medowie where the fatal events took place.

20 On 16 December 2001 the prisoner had access to his daughters. The deceased, according to the prisoner, was to collect the girls at about 6.30pm. At about 5.00pm the prisoner had taken the children to a park near his residence to play. At a time approaching 6 o’clock, the prisoner left the park to return home in order to relieve himself. He expected to be away for only a few minutes. He claimed that he was surprised to find the deceased arriving outside his house as he arrived there.

21 It is relevant to note that on the day before, namely 15 December, one Brenda Ambler, having been engaged by the prisoner to do so, had served Family Court process taken out by the prisoner on the deceased. That process was intended to lead to a divorce. Mrs Ambler deposed that Heather Maskey was angry when served. In particular, she expressed a concern that the prisoner might, at a later stage, gain custody of the two girls.

22 I return to the events of 16 December 2001. After an angry encounter outside the house, the prisoner and the deceased separately entered the premises. Once inside, the couple continued to trade insults and accusations.

23 According to the prisoner, one of the matters then raised was the paternity of the child Maxine. Indeed, on 14 December 2001 the prisoner had sought and obtained a referral from Dr Beiers to the Genetics Clinic at Waratah for the purpose of ascertaining if he was in fact Maxine’s father. He claimed that on the anniversary of the hammer assault, namely on 10 October 2001, the deceased telephoned him, claiming that he was not Maxine’s father.

24 Curiously enough, he saw Dr Beiers for a routine consultation the next day but did not mention that matter to him.

25 I return again to the events of 16 December 2001. The prisoner claimed that the deceased entered the kitchen, saying that she wanted a cold drink. The prisoner also entered the kitchen, standing, on his evidence, between the deceased and her mode of passage from the room. In the kitchen the prisoner says that he indicated to the deceased an envelope on the kitchen bar containing Dr Beier’s referral to the Genetic Clinic. He then deposed as follows (page 21):

“Q. You indicated that certificate or that envelope to her, did you?”
“A. Yes.”

“Q. Were you both in the kitchen at this stage?”
“A. Yes, she was getting her cold drink, getting a drink.
“Q. In relation to your positions in the kitchen, there’s a bench.” Just been shown photograph 71 exhibit B.
“A. Yes.”

And I interposed there to say that that photograph clearly illustrated the logistic situation of that kitchen bar.

“Q. Was she on the sink side of the bench? A. Yes. Q. Where were you standing? A. I’d sort of come out of the toilet and the toilet was connected sort of to the kitchen in the sort of like to the bathroom thing, not to the bathroom sorry, you know, in the kitchen area, they’re all the same together. Q. You were standing on the other side of the bench? A. Yes. Q. How was your wife, was she upset or was she calm? A. Oh she was ropable. When she said that I told her it was, it was like she was on fire yeah. Q. Had you had anything to drink substantially that day? A. No substantially but I did, I had a long, a beer. Q. Had you had any tablets that day? A. Yes I had to yes. Q. How many tablets did you have? A. I’m not sure about, my normal dose about half a dozen.”

Then went on to describe what he’d taken. He was asked if he was upset, he said he was. He then said, was asked this:

“Q. And when your wife told you she was going to get a drink, did she do something? A. She grabbed a knife out of the drawer, out of the kitchen drawer. Q. Did you say anything to her? A. I wish I had finished you off last night, finished the job. Q. Did you say anything to her? A. I think I called her a fucking idiot. Q. Did she do anything?
A. When she lunged at me with the knife, I leant over where that photo, sorry where that envelope was where I was pointing by the fruit there that I was going to chop up to take to the park, I grabbed the knife. Q. Do you recall struggling with her at any stage?
A. Yes. Q. The two of you grappled hold of each other? A. Yes. Q. Do you recall whether your shirt was torn? A. Yes.
Q. Do you recall that happening? A. Yes.
Q. You say she had a knife. Which hand did she have the knife in? A. The right hand.
Q. Do you recall as to whether you knocked it out of her hand at all? A. I think when she lunged at me, I think that’s when I knocked it out of her hand, she was lunging at me, lunging at me and I was lunging at her. Q. You didn’t suffer any injury from the knife or anything did you? A. No. Q. I think you said to the police that you lost it? A. Jesus mate, I’m fucking been hounded before I was chased down the road, she was going to fucking the job. I apologise for swearing you know, it was, you know, I was fucking in fear. I’m sorry again, I was in fear. Q. Do you remember stabbing her? A. I don’t. I remember lunging at her and that’s it. I know everyone thinks I’m an idiot for that but that’s it. It snapped black, something happens. Q. What’s the next thing you remember? A. Her being on the floor.”

26 He then rang triple 0, according to that conversation, was played in evidence. The prisoner then went outside the house where he encountered his neighbour Allan Parmenter. For some reason the prisoner called Mr Parmenter Fred.

27 In the statement tendered without objection before the court, Mr Parmenter said as follows:

“On Sunday, 16 December 2001 I’d gone out for a while and came home at about 4.15. I went outside and was eating about 6.15 and all of a sudden I heard Chris”, that is the prisoner “yelling out from the front of his house. The yelling was getting louder and I knew he was coming towards my house. I don’t know why, but Chris always calls me Frank for some reason. I could hear him yelling out ‘Frank come here quick, come here Frank, come here quick.’ I got up from the table and I went out through my back door. Chris was at the back door as I came out. He said ‘Frank I’ve stabbed my wife. I think I’ve killed her.’ I said ‘Chris what have you fucking done?’ Chris said “Come, come, come over.’ I said ‘No I can’t go in. I’m not going in. I’ll call the police, I’ll call the police.’”

28 The prisoner then asked Mr Parmenter for a cigarette and Mr Parmenter gave him a Winfield Blue.

29 I should add that Mr Parmenter also stated that prior to the fatal day, the prisoner had told him on a number of occasions of his desire to kill his wife. Furthermore, in cross-examination, the prisoner conceded the following, page 39:

“Q, There were times before October 1999 that you said to her you were going to kill her?
A. Yes. Q. You’re aware aren’t you that Toby spoke to police twice about these matters?
A. Yes sir. Q. And you’re aware that the second time he spoke to police you told them on that weekend either the Friday night or again on the Saturday you told him you were going to kill your wife?” He was asked to put it again and he replied “A. I think I said on a number of times over a number of years, yes sir.” It was then put to him “Q. I’m talking about that weekend? A. Yes sir. Q. You said to him a number of times, is that right? A. I used to rant to myself when I’d been drinking. Q. You told Toby a number of times prior to December 2001 you were going to kill his mother, is that right? A. Probably sir yes.”

30 The prisoner maintained that he has no recollection of stabbing his wife, but he concedes that he did.

31 Doctor Bruce Westmore, forensic psychiatrist, in a report dated 4 July 2003 dealt with that topic. He said this:

“There are a number of possible explanations for his reported amnesia. He may have a full recollection of what occurred, but is deliberately denying these memories. Secondly, it is possible that mental mechanisms such as repressions, suppression and denial are playing an active role in preventing him from the more traumatic aspects of the incident. Thirdly, the acuter motions of fear, anxiety, apprehension and anger that he’s likely to have experienced at the time along with the physically violent incident itself and the emotions associated with that, have interfered with the laying down of full memory traces in relation to everything that occurred during the incident. If he is not deliberately denying real memory, then his reported lack of memory is probably due to a combination of two and three above.”

32 It is my task to assess the answers to the alternatives proposed by Doctor Westmore. Again, the question of the prisoner’s credibility is at the forefront of that task. Again I shall return to this question later in these remarks.

33 The post mortem report furnished by Doctor Lee, forensic pathologist, demonstrates that the attack carried out by the prisoner on his wife was one of immense ferocity. Doctor Lee found no less than twenty-seven stab wounds to the deceased’s chest, twenty-one of which were on the left side. Even a person with the most elementary knowledge of human physiology would be aware that one’s heart is on the left side of the chest. Doctor Lee’s unchallenged conclusions, illustrate the ferocity of the assault, and under the heading of comments, Doctor Lee said this:

“1. Death is as results of a series of chest wounds. They have predominantly involved the chest, mostly on the left and mainly in the area of the breast.

2. All the stab wounds are consistent with having been inflicted by the same instrument.

3. The injuries are consistent with having been inflicted by the long bladed stainless steel kitchen knife found at the scene.”

That knife was tendered in evidence I should add and is

exactly that, a long bladed stainless steel kitchen knife.

“4. Many of the stab wounds could be regarded as being individually fatal. These include all injuries which could have penetrated the heart, great vessels or the inner part of the lungs.

5. The degree of force in many of the stab wounds has been very heavy and sufficient to fully transfix the chest. This has caused bony damage both at the entry site and the exit site.

6. The blood splash pattern identified on the body within part of the crime scene are consistent with medium impulse splashing impacts produced as a result of repeated stab impacts in a heavily blood wetted surface. This in turn indicates repeated stabs to the chest with the hand striking the blood wetted chest wall to produce the blood splatter.

7. There is minimal evidence of defence injuries in the form of incised wound to the hands.

8. There is little evidence of significant movement of the deceased following the commencement of the assault which appears to have commenced next to the breakfast alcove”

and I do not need to read any more.

34 If Doctor Lee’s findings stood alone, I would have no doubt that the only inference to be drawn from his conclusions is that when the prisoner attacked his wife, he intended to kill her, not merely to do her really serious bodily harm, but these autopsy findings do not stand alone. I accept that the prisoner had told both Mr Parmenter and his son Toby of his intention to kill his wife.

35 In the light of the attack which finally took place, I do not accept the prisoner’s statement that these prior statements were not statements of intent, but merely of swagger or bravado, assisted perhaps by alcoholic ingestion.

36 In short, this is a case where I must assess the prisoner’s sentence on the basis that he intended to kill his wife, and that when he did, he carried out his task with extraordinary violence. That alone would constitute a serious breach of the criminal law involving a crime where any commission of it is serious enough, but the matter does not end there. Section 21A of the Act lists a number of matters which are to be taken as aggravating factors. Indeed to a greater degree, the Act repeats the common law of this State prior to its enactment in this regard.

37 In particular there are two important features of aggravation here. First, the use of the knife. Not only does the Act categorise such a case as constituting aggravation, but so have the courts of this State for many years. Secondly, the fact that the prisoner was subject to a bond for breach of an apprehended violence order involving his wife when he murdered her.

38 Having given due consideration to the submissions of counsel for the prisoner in this regard, I am of a view that this is a breach of great gravity. This factor leads me to the conclusion that this case involves a greater degree of culpability than the case of Benjamin Walkington which I recently dealt with and was referred to by counsel for the prisoner in his submissions.

39 Accordingly, the objective circumstances of this crime places it high in matters of seriousness. I should add, not high enough to fall within the concept of the worse type of case.

40 I should add that I have read the victim impact statements that were submitted to the court. While the law does not allow me to use their contents in assessing an appropriate sentence, I understand well the loss and pain felt by family members, and I extend the court’s sympathy to them.

41 Before turning to the matters raised in mitigation, I should deal with the question of the prisoner’s credibility. His claim that he was frightened of his wife, as he deposed in this court, and told professionals such as Doctors Vamos, Beiers, Reid and Westmore is a matter of some importance in viewing all the matters raised when looked at in an overall manner.

42 I find that his telephone threats, his stated intent to Mr Parmenter and his son Toby, his statement to Dr Westmore that in terms of verbal abuse he gave as good as he got and, indeed, his very evidence before this Court of the exchange between the deceased himself immediately before the lethal attack happened are not indicative, in my view, of fear; loathing perhaps, but not fear.

43 I find that, in these circumstances, the prisoner is not a credible witness. This leads me to the conclusion that the most cause of his failure to recount the features of his attack upon his wife is the first of Dr Westmore’s postulations; that is, that he may well have a full recollection of what happened, but he is deliberately denying those memories.

44 I turn now to the matters raised in mitigation. First, it was submitted that the attack was not premeditated. I accept that the prisoner did not plan the place or the manner of his attack. However, for reasons I have already stated, I am of the view that he had intended to kill his wife prior to 16 December 2001; just when and how were not determined. When the opportunity arrived, he took it. I thus give little weight to this submission.

45 While raised in the context of culpability, it was put on the prisoner’s behalf that an element of provocation is to be taken into account. It is, of course, settled law that even where a prisoner is convicted of murder where provocation has been unsuccessfully raised, the Court may take provocation into account; see R v Bell, Valera and Peters.

46 In this regard, it is true that the deceased had assaulted the prisoner on 10 October 1999 and I have, of course, referred to this assault and its aftermath earlier in these reasons. However, in cross-examination the prisoner conceded violence in his own part in the relationship. Indeed, he conceded that, prior to attacking him with a hammer on 10 October 1999, he had, during a day of friction, earlier jammed her arm against a freezer door.

47 I find this is not a case where the acts of the deceased provoked the prisoner. It was a case where mutual contempt gave rise to continuing friction. It is true the Crown cannot contradict the prisoner’s allegation that the deceased commenced the exchange which led him to stabbing her. The presence of the second knife at the scene near the deceased’s body is corroborative, to a degree, of his account. To that extent, I shall take into account provocation, but it is not a matter upon which I place great weight.

48 The prisoner is entitled, on a utilitarian basis, to have his plea of guilty taken into account. Again, that utilitarian basis comes into play because, first, the expense of a trial anticipated to last four weeks and a number of witnesses were saved from having to give evidence, thus saving time, inconvenience and strain on their part and expense on the part of the State.

49 On the other hand, I do not accept the prisoner’s statement that he is remorseful for his actions, save to the degree that he is sorry for himself in the situation he is now in. As I have earlier found, I do not find him to be a credible witness. In these circumstances, I cannot give great weight to the submission that he is truly remorseful. I should add that, while he is entitled to have his belated plea of guilty taken into account on a utilitarian basis, the Court of Criminal Appeal has often stated that, in a case where guilt is plain involving the crime of murder, a plea of guilty is not of powerful assistance to a prisoner in terms of mitigation.

50 While the prisoner has a number of prior convictions, with the exception of his breaches of apprehended violence orders, to which I have already averred, his earlier convictions are not relevant to this crime and I have not used them adversely to the prisoner.

51 I agree with the submission made that the prisoner is entitled to a finding of special circumstances for part of the reasons contended for by his counsel. I find special circumstances because:

1 He has not served a custodial sentence before; and
2 His head injury has resulted in him suffering headaches and associated discomfort.

52 I have considered all of the matters of mitigation as stipulated in s 21A and believe that I have taken into account all that are relevant here. I have also taken into account the relevant schedules of cases and reports furnished to the Court and referred to by counsel in their very able submissions.

53 The prisoner has been in custody now since the night of the murder, namely, 16 December 2001, and thus I have dated my sentence from that date. As I have already stated, the case falls within the ambit of the repealed s 44 of the Act. That section requires the Court to:

(a) Set the term of the sentence; and
(b) Set a non-parole period of not less than three- quarters of the term, unless, as I have found, special circumstances exist.

54 Taking into account the objective gravity of the offence and also the matters I have found in mitigation, I set the terms of the sentence to be twenty years, commencing on 16 December 2001 and expiring on 15 December 2021.

55 I set a non-parole period of fourteen years, which expires on 15 December 2015.

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Last Modified: 12/04/2003