Regina v Prior

[2002] NSWSC 56

CITATION:	Regina v Prior [2002] NSWSC 56
CURRENT JURISDICTION:	Criminal
FILE NUMBER(S):	SC 70056/01
HEARING DATE(S):	5 February - 12 February 2002
JUDGMENT DATE:	12 February 2002
PARTIES :	Regina v Raymond John Prior
JUDGMENT OF:	Michael Grove J at 1

COUNSEL :	M. Macadam QC (Crown) C. Bruce (Accused)
SOLICITORS:	Director of Public Prosecutions NSW (Crown) Legal Aid Commission of NSW (Lismore) (Accused)
CATCHWORDS:	SENTENCE - MURDER OF WIFE BY HUSBAND
CASES CITED:	R v Hurley [2001] NSWSC 1007
DECISION:	SENTENCE IMPOSED

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MICHAEL GROVE J

GRAFTON: TUESDAY 12 FEBRUARY 2002

70056/2001 - REGINA v RAYMOND JOHN PRIOR

SENTENCE

1 HIS HONOUR: Raymond John Prior is before the Court for sentence upon conviction of murder. On Tuesday last the jury was empanelled for trial. After an opening address by senior counsel for the Crown, counsel for the prisoner exercised his right also to open, and he informed the jury that the sole issue being canvassed on behalf of his client was whether the prisoner was guilty of murder or guilty of manslaughter by reason of substantial impairment by abnormality of mind, a partial defence made available by s23A of the Crimes Act.

2 However, after the calling of several witnesses, whose testimony was not the subject of significant challenge, the prisoner sought to be re-arraigned. This was done and he pleaded guilty to murder. I have taken that plea to convey a concession that whatever impairment the prisoner claims it was not so substantial as to warrant his liability for murder being reduced to manslaughter. So much has been acknowledged by counsel. However, it is contended that the prisoner did suffer from a psychiatric condition which was diagnosable as an adjustment disorder, and that although any impairment was not so substantial as mentioned, it is nevertheless a relevant factor of mitigation which ought to be considered in the assessment of sentence. To this end a volume of psychiatric material was put before the Court and I will return to refer to some of it.

3 The victim and the prisoner had been married for about 12 years, but there should be added to this a period of about six years premarriage relationship. Each of them had previously been married. The victim had two daughters who are now aged in their early twenties and the prisoner has two sons who are also adults. The family at the time of the offence also consisted of a son of the prisoner and his wife who is now aged about 11 or 12 years. The prisoner is not the natural father of this child who was conceived whilst the prisoner was serving a sentence in respect of a drug offence, but it is plain, and I accept that he has always treated this boy, and continues to treat him, as his own son. I accept that his expressed affection for him is genuine.

4 Since his early teenage years the prisoner has had an involvement with drugs escalating from marihuana use to more deleterious substances. One of his sons spoke to a psychiatrist and described him as a slave to the drug heroin. His record includes convictions relating to drug matters and he has served two periods of imprisonment in respect of such offences. On the histories given to doctors and the other materials which have been tendered it would appear that fidelity of the partners to the marriage to each other was not always observed, but at least in recent years until shortly before the killing, the relationship between the prisoner and the deceased was significantly monogamous.

5 However, the prisoner's drug taking continued to be a problem. A separation occurred in the months before the killing and the prisoner went to reside in Lismore and the deceased continued to reside in the former matrimonial home at Tenterfield with the young son. The prisoner had some employment as a truck driver and the nature of this enabled him to visit Tenterfield relatively frequently.

6 The prisoner has said that it was his hope that the relationship could be restored despite the separation, and he has claimed that the deceased encouraged him to think along those lines. Whether that be accurate or not cannot in the present circumstances be definitively determined. It came to the knowledge of the prisoner that his wife was associating with another man. Among other things, the prisoner claims that his wife told him at one stage she wanted to try a straight relationship, that is with a non-drug user. Such a man was identified as Colin Booth, a truck driver who resided in Warwick in Queensland. The prisoner sought him out but said that his intended confrontation was thwarted by observing that Mr Booth had prepared himself and the prisoner contented himself with expressing his anger by slashing the tyres of Mr Booth's vehicle. This incident took place shortly prior to the killing.

7 The prisoner was visiting Tenterfield on 24, 25 August 2000, and what occurred needs substantially to be gleaned from his description as well as police investigations. The deceased permitted him to remain at the home for the night but required him to sleep in a caravan which was located in the yard of the premises. In the early hours of the morning he entered the house in order to use the toilet facility. A dog who had apparently been sleeping upon the deceased's bed got up as a result of which she awoke and the parties commenced to converse. In the course of this conversation the prisoner's wife told him that she did not love him any longer, that she believed she was in love with the man Booth, and that their relationship had already extended to engaging in sexual intercourse.

8 It was after receipt of this information that the prisoner assaulted his wife. He claims to have no precise recollection of the details of the assault. Examination of her body which had been buried in the bush for several days nevertheless showed that she had been the victim of an extremely violent assault, particularly about the facial area, and that she had been killed in circumstances which I am satisfied beyond reasonable doubt included manual strangulation perpetrated by the prisoner. Post-mortem examination revealed a fracture of the 6th cervical level.

9 Subsequent to the killing the prisoner wrapped the body in a blue tarpaulin and bound it with electrical tape. He conveyed the body to some remote bush land about 17 kilometres from the township of Tenterfield and buried it in a shallow grave.

10 He returned to the home. The young boy was apparently unaware of what had happened and the prisoner gave him disinformation when he enquired as to the whereabouts of his mother. He was taken to school and the prisoner went to attend some arranged work with an employer for whom he worked from time to time in the manufacture of furniture. The absence of the deceased from her place of work caused concern and as a result of enquiries by her employer police were called. Police visited the prisoner at Black Swamp, his employer's premises, but he maintained a fiction that his wife was missing and he had no knowledge of how this came about. He mentioned to the police the existence of his wife's "boyfriend".

11 It is obvious that the police were immediately suspicious of the prisoner. In due course, as the deceased had not been located, he was asked to attend for interview at Tenterfield Police Station. As a result of some delay there and with the consent of police he departed for the stated purpose of having a meal, but in fact got a friend to drive him to Lismore. At Lismore he made some incomplete efforts to make preparations to flee but discussed the matter with a friend who persuaded him that the best thing to do was to turn himself in.

12 In order to achieve this he visited the Legal Aid Office. As a result a statement was provided to police, signed by the prisoner, in which was set out the precise location at which the deceased's body could be found. Upon supply of this statement the prisoner was arrested and charged with murder. The statement was provided on 29 August 2000. The killing had taken place in the early hours of the morning of 25 August.

13 I have already mentioned in passing the existence of prior record on the part of the prisoner and his contact with illicit drug taking. Those subjective matters apart, material was put before the Court emanating from professional psychiatrists. An issue between the prisoner and the Crown was put in terms that it was contended on behalf of the prisoner that he suffered from a psychological condition able to be categorised as an adjustment disorder, but which it was acknowledged was not of such substance as to justify reduction of his crime from murder to manslaughter, whereas the Crown's contention is that the prisoner does not suffer from any diagnosable psychiatric condition.

14 In order to deal with this contest there were put before the Court series of medical reports from professional psychiatrists, Dr Nielssen, Dr Delaforce, Dr Wilcox and Dr Westmore, the three first named of whom were also called to give evidence viva voce. It does not seem to me that the issues with which I am concerned will be advanced by a lengthy analysis of the diagnostic debate. I note that the prisoner told Dr Delaforce that his explanation for his wife's death was "that he must have transferred his anger on to her from Mr Booth when she told him that she did not love him and loved Mr Booth". I am satisfied that that accurately describes the situation.

15 This is also consistent with an observation by Dr Delaforce who reported:

"Even if it is accepted that the diagnosis of adjustment disorder is appropriate there still must be considered analysis of the mental state of Mr Prior at the immediate period before and after her death. A problem with the reports of Dr Wilcox and Dr Nielssen is that they simply just report a few symptoms that supposedly represent an adjustment disorder and use the disorder as an explanation for Mr Prior's actions that allegedly led to his wife's death. Mr Prior told me that the last sentence his wife spoke before he repeatedly struck her before her death was that she did not think she had any love for Mr Prior and was in love with Colin Booth. Mr Prior told me that in retrospect he realised he must have changed at the time she told him this from previously only wanting to blame and fight Mr Booth to expressing his anger at his wife when he struck her and then realised he had also strangled her. His anger alone at the relevant time, which relates to his admitted chronic problem with a bad temper, best accounts for his behaviour".

16 I would also extract some observations from the report of Dr Westmore who said:

"I am unable to exclude the possibility that this man's behaviour towards his wife was the result of a jealous aggressive outburst, precipitated by his wife's wish to end their relationship and her revelation to him that she was in love with the other man and had had a sexual relationship with that person. Whilst I would accept that he was psychologically distressed with the news that his long term relationship with his wife would end, he apparently continued to work, he appears to have attempted to act quite normally after the homicide and any abnormality of mind would not in my view have substantially impaired his capacity for any of the relevant factors necessary to sustain a defence of substantial impairment.
There were however a number of significant stressors in this man's life which might be taken into account by the Court at some later stage. The fact that he acted out of character does not necessarily lead to the defence of substantial impairment but does suggest he was a man under considerable stress and strain at the time this incident occurred, and further factors of mitigation which the Court might consider".

17 I am aware of course that Dr Wilcox takes a slightly different view but no consultant, including Dr Wilcox, has suggested a possibility that any impairment would have affected the prisoner's capacity to understand the events or judge whether his actions were right or wrong, and opinion has focussed upon the capacity of the prisoner to control himself. Quite obviously, in the event, he did not. The person who best knows what the situation was as to control was the prisoner, and psychiatrists are of course dependent to a very significant degree upon his description of events. His plea of guilty, as I mentioned, indicates his concession that there was no impairment of substance which would justify the reduction of his crime from murder to manslaughter.

18 Not all details of the prisoner's histories are entirely reliable, although I accept that he appears to have been in a very confessional mood, particularly when talking to Dr Delaforce. Nevertheless, I note that he told Dr Delaforce that he did not blame Mr Booth, although this seems to have been a realisation or an attitude which has been subsequently formed.

19 I am satisfied that the prisoner is the person who left the message on the telephone answering machine at Mr Booth's home some time between Friday morning and the Saturday afternoon, 25 and 26 August. I shall not set out the entire text of the vulgar message, but included in it, significantly, is the direct assertion that the undescribed "it" is Mr Booth's fault. In context, "it" must refer to the victim's death.

20 My conclusion is that the genesis of the prisoner's offence was his uncontrolled rage at being discarded by his wife for her new lover. I am however persuaded that the probability is that the prisoner is genuinely remorseful for what he has done, and in this regard I have paid careful attention to letters which he has written and to the candour with which he has expressed his remorse, not only to the addressees of the letters, but to others such as the psychiatric consultants.

21 A particular submission was made that I should take into account the plea of guilty evaluated on a utilitarian basis. I accept that the prisoner has always been prepared to accept and acknowledge his responsibility for the killing, but that his failure to plead guilty to the charge of murder was affected by the advice he was getting concerning the somewhat imprecise psychiatric opinions which were being produced and conveyed to him raising the alternative possibility of conviction for manslaughter. I consider that the appropriate course in this case is to indicate the reduction that I will make on account of the plea of guilty both on the basis of any utilitarian value and by reason of his remorse and contrition. Other than that there is little to be said in regard to the prisoner concerning subjective matters.

22 He has not a clean prior record and upon his own statement he was continuing the use of illicit drugs right up to the time of the killing. There are medical history notes that he is hepatitis C positive but this was not elaborated beyond recording the circumstance.

23 I have not overlooked the evidence of the prisoner's first wife that she did not ever observe him to be a man of physical violence but their marriage is very much in the long ago past and I am unable to place great weight upon her observations. That is not to say that I do not accept them as tendered to the Court sincerely.

24 The prisoner has claimed a significant daily expenditure to feed his drug habit. It was not suggested that drug taking was a factor in provoking the offence except to the limited extent that the prisoner mentioned that a reduction in drug intake may have led to withdrawal symptoms, thus in turn inhibiting him from refraining from giving vent to his anger, an anger which became homicidal. No doubt the expenditure on drugs must have reduced the capacity of the prisoner to contribute to the financial upkeep of the family.

25 Counsel for the prisoner drew my attention to the remarks on sentence of Levine J in R v Hurley [2001] NSWSC 1007 which case was said to bear some similarity to the present in that the murder occurred in the context of what might be called the break down of a domestic relationship. In that case the prisoner was convicted by the jury and was sentenced to 18 years imprisonment with a non-parole period of 13 years and six months. It is of some assistance to consider this outcome.

26 I should mention that there have been placed before the Court two victim impact statements to which I have given the attention permitted by law. I am conscious of the enormity of loss and the pain felt by relatives of the victim of murder, and I am certain that it offers them no consolation that a judge is bound to apply an objectivity in sentencing which will no doubt produce a result which is different from what would be perceived by those suffering from the loss of the loved one as the offender's just deserts.

27 The prisoner must be sentenced to a determinate period of imprisonment. Counsel for the prisoner expressly indicated he made no submission in relation to specification of a non-parole period other than in accordance with the statutory prescription. I do not find that special circumstances justify any departure.

28 Upon an overall basis I would assess a sentence of 20 years imprisonment, but having regard to my findings and the entitlement in law of the prisoner to have taken into account his plea of guilty on the basis that I have mentioned, I propose to impose a sentence of 16 years imprisonment.

29 Raymond John Prior, you are sentenced to imprisonment for 16 years to date from the 29 August 2000. I specify a non-parole period of 12 years to date from that same date. The first date upon which you will be eligible for consideration for parole will be 28 August 2012.

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Last Modified: 02/15/2002