Regina v Williams

[2004] NSWSC 189

CITATION:	Regina v Williams [2004] NSWSC 189
HEARING DATE(S):	08/10/2003, 07/11/2003
JUDGMENT DATE:	22 March 2004
JUDGMENT OF:	O'Keefe J
DECISION:	Sentenced to imprisonment for 14 years to commence on 24 December 2001 and expire on 23 December 2015; Non-parole period fixed as 10 years and 6 months to commence on 24 December 2001 and to expire on 23 June 2012.
CATCHWORDS:	Criminal law - Manslaughter - Plea of not guilty - Provocation - High culpability - Events subsequent to killing - Hiding body - Revealing of whereabouts of body after many months - Remorse - Absence of remorse - Assistance to authorities not effective
LEGISLATION CITED:	Crimes Act 1900 (NSW), s 24 Crimes (Sentencing Procedure) Act 1999, ss 21, 21A, 23, 44, Division 2, Part 3
CASES CITED:	Regina v Blacklidge (NSWCCA 12 December 1995, unreported) Regina v Bollen (1998-1999) 99 ACrimR 510 Regina v Dodd (1991-1992) 57 ACrimR 349 Regina v Hill (1980-1981) 3 ACrimR 397 Regina v Isaacs (1997) 90 ACrimR 587 Regina v Previtera (1997) 94 ACrimR 76 Regina v Storey (1997) 89 ACrimR 519 Regina v Troja (NSWCCA 16 July 1991, unreported) Savvas v The Queen (1995) 183 CLR 1 Veen v The Queen (No 2) (1987-1988) 164 CLR 465 Wong v The Queen (2001) 207 CLR 584
PARTIES :	Regina Anthony Robert Williams - Prisoner
FILE NUMBER(S):	SC 70110/02
COUNSEL:	Mr PS Dare SC - Crown Mr MD Austin - Prisoner
SOLICITORS:	Director of Public Prosecutions (NSW) - Crown Nikola Velcic & Associates - Prisoner

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

O’Keefe J

22 March 2004

70110/02 Regina v Anthony Robert Williams

JUDGMENT

Introduction

1 On 17 November 2001 Donna Michelle Pearce (Donna Pearce; Ms Pearce; the deceased) was killed at Kingswood by Anthony Robert Williams (the prisoner). He was then aged 35 years; she was 30. After the prisoner had killed Ms Pearce he drove to Lapstone on the lower Blue Mountains, where he hid her body in the bush. He returned to Kingswood rifled her flat, took her jewellery and later drove to the house of a friend in Queensland. That friend suggested that the place where he had hidden the body may be too obvious and may result in its being found reasonably quickly. As a consequence the prisoner drove back from Queensland to Lapstone, where he dragged the body of the victim face down along a rough, stone littered bush track. He placed her body in the boot of his car and drove to Wentworth Falls where he hid it more deeply in the bush by dragging it face upwards but head to the ground along another bush track in that area to get to the spot where he placed her body. Having done so he returned to Queensland.

2 The prisoner was ultimately arrested on 24 December 2001 and charged with having murdered Donna Pearce. His trial commenced on 27 July 2003. He was convicted of manslaughter on 13 August 2003.

3 There was some delay in obtaining necessary reports. For example, the report from the Probation and Parole Service was not forthcoming until 8 October 2003, on which date a Sentence Hearing was conducted. After the decision on the sentence for prisoner had been reserved, application was made on his behalf to call additional evidence, namely a report from a nurse attached to the Drug Court of New South Wales who had befriended the prisoner some years previously. Because of the unusual circumstances in which this report came into being, the Crown wished to have an opportunity to test the witness. Her presence at Court was somewhat difficult to arrange and was not able to be achieved until 7 November 2003. On that date a further Sentence Hearing was conducted and the decision on sentence was reserved.

THE ONUS AND STANDARD OF PROOF

4 The decision of the court on sentence is an important matter for a prisoner. It has often been said that in some instances it is no less important than the decision as to the guilt or otherwise of the prisoner. The standard of proof in a sentencing hearing is the same as it is in a trial, namely proof beyond reasonable doubt. This standard applies to any disputed facts which are not covered by the verdict of guilty. In Regina v Storey (1997) 89 A Crim R 519 a specially constituted Court of Criminal Appeal in Victoria confirmed this statement of the law. Winneke P, Brooking and Hayne JJA and Southwell AJA said:

“The judge may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.” (at 530)

5 In determining what facts are adverse to the interests of the prisoner and what are favourable, the Court must ask what the tendency of the facts is in the particular case under consideration. As was said in Regina v Storey (supra):

“’Aggravating’ and ‘mitigating’ must be understood in a wide sense and without, eg, drawing the distinction which might be drawn between the significance for another purpose on the one hand of a circumstance which renders the crime more serious (eg, the use of a weapon) or on the other hand of a prior or subsequent conviction.
“The test is not what tag should be applied to any particular fact but what use the judge proposes to make of the fact in relation to the offender. If it is a use adverse to the interests of the offender then proof beyond reasonable doubt is required; if it is a use in favour of the offender then proof on the balance of probabilities will suffice.”

and:

“We have spoken of disputed ’facts’ … there may be a large number of facts which it is contended demonstrate a relevant conclusion. Just as on a trial the Crown does not have to prove every fact on which it relies beyond reasonable doubt in order to conclude that the offence is proved, so too on sentencing, attention must be directed to the relevant issue and it is the issue that must be established to the requisite standard – not each of the individual facts which is said to bear upon the issue.” (supra at 531 – 532)

6 The law of New South Wales accords with these statements. (Regina v Isaacs (1997) 90 A Crim R 587 at 592.)

7 In determining, as I must, the facts on which the sentence is to be imposed on the prisoner in this case (Savvas v The Queen (1995) 183 CLR 1) I have applied the law as set out above in the light of the verdict of the jury, namely a verdict of manslaughter.

MANSLAUGHTER

8 In Regina v Hill (1980-1981) 3 A Crim R 397 Street CJ pointed out the difficulty that is posed for a court in relation to the imposition of a sentence for the crime of manslaughter. He said:

“It has been said that manslaughter, perhaps beyond any other crime, is protean. The circumstances leading to the felonious taking of human life being regarded as manslaughter rather than murder can vary infinitely, and it is not always easy to determine in any given case what should be done in the matter of sentence.” (supra at 402.)

and:

“At the start it should be recognised that the felonious taking of a human life is recognised both in the Crimes Act 1900 and in the community at large as one of the most dreadful crimes in the criminal calendar. The courts have, however, over the decades gradually manifested a willingness to recognise factual contexts which provide some basis for understanding the human tragedies that can lead to the taking of a life. The manifestation of this humanitarian tendency is necessarily attended by the utmost caution. It can be seen to be constantly written in the decisions of the courts and in the enactments of the legislature that the taking of a human life is a grave action calling out for a correspondingly grave measure of criminal justice being meted out to the guilty party.
… It is necessary to evaluate the demands of the criminal justice system, the expectations of the community at large, the subjective circumstances of the person coming forward for criminal judgment and the interest of society in protecting itself and its members from criminal activity amounting … to the taking of a life.” (ibid)

9 To a like effect is the decision in Regina v Blacklidge (NSWCCA 12 December 1995 unreported) in which Gleeson CJ said:

“It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability.”

and

“… the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for consideration of the appropriate penalty and a key element in the assessment of the gravity of the objective circumstances of the case.”

10 The range of sentences that may be imposed on a conviction of manslaughter is greater than for virtually any other crime because of the high maximum sentence fixed by the statute on the one hand and the great variety of circumstances that may be comprehended by the crime on the other. The range of circumstances against which the sentence must be imposed means that it is usually difficult to compare other cases, as it is to find any clear pattern from such cases. Each case must ultimately depend on its own facts. (Regina v Troja (NSWCCA 16 July 1991 unreported per Kirby P))

11 When determining the appropriate sentence in a case of manslaughter there are competing considerations that need to be taken into account. On the one hand is the fact that there has been a felonious taking of human life. Such a taking of human life is recognised both by the legislature and the community as a serious crime. That recognition must be addressed in the sentence imposed. In that context it must be remembered that it is an important role of the law to act so as to protect human life by punishing those who take it feloniously. In the present case the deceased, Donna Pearce, is not able to give her version of the events which lead up to, and were involved in, her actual killing by the prisoner. Furthermore, the consideration that the factual content and circumstances of the crime may significantly affect the blameworthiness of the perpetrator, one way or the other, must also be taken into account. Care must be taken not to concentrate solely, or mainly, on any subjective considerations of its perpetrator.

12 It can thus be seen that there are competing considerations to be taken into account when determining the appropriate sentence in a case of manslaughter. These considerations are in tension and the task of the sentencing judge is to resolve that tension. Doing so requires a balancing of the demands of the criminal justice system and community expectations in relation to the protection of the lives of members of the community, and the punishing of a person who has taken a life feloniously on the one hand with any relevant subjective circumstances of the person responsible for the taking of the life in the circumstances of the particular case on the other.

13 The resolution of the tension between the competing factors to which I have referred must involve a reasonable proportionality between the sentence imposed and the circumstances of the particular manslaughter. This in turn involves the sentencing judge in the first instance having regard to the gravity of the offence viewed objectively and then to the subjective features involved in the case. The need for proportionality and to have regard to the objective gravity of the offence was stressed in Regina v Dodd (1991-1992) 57 A Crim R 349 in which it was said:

“There ought to be a reasonable proportionality between a sentence and the circumstances of the crime and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place. Each crime … has its own objective gravity meriting at the most a sentence proportionate to that gravity, the maximum sentence fixed by the legislature defining the limits of sentence for cases in the most grave category. The relative importance of the objective facts and subjective features of a case will vary … even so, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective circumstances of the case.” (supra at 354)

STATISTICS

14 It is difficult to obtain a great deal of assistance from the statistics produced by the Judicial Commission of New South Wales in relation to penalties imposed for manslaughter or from the schedule of cases produced by counsel for the prisoner. The first source of difficulty is the very nature of the crime of manslaughter itself. The second is the wide range of sentences revealed in the statistics and in the schedule to which I have referred. A third is that adverted to by the High Court in Wong v The Queen (2001) 207 CLR 584 in which Gaudron, Gummow and Hayne JJ said:

“… to attempt some statistical analysis of sentences for an offence which encompasses a very wide range of conduct and criminality … is fraught with danger, especially if the number of examples is small. It pretends to mathematical accuracy of analysis where accuracy is not possible. It may be mathematically possible to say of 20 or 30 examples of an offence … where the median or mean sentence lies. But to give any significance to the figure which is identified assumes a relationship between all members of the sample which cannot be assumed in so small a sample. To take only one difficulty, why were the highest and lowest sentences set as they were? (at 608)

15 Notwithstanding these difficulties, but bearing them in mind, it may still be of some assistance to consider the various statistics. The range of sentences revealed by the statistics relating to manslaughter is from 18 months to 20 years. These statistics are based on 185 cases. They indicate that a prison sentence has been imposed in 90 percent of the cases. That is an indication, especially when combined with the maximum penalty fixed by the legislature and the statements by superior courts referred to in paragraphs 8 and 9 above, that a custodial sentence would be appropriate in the present case. The statistics also show that the head sentences in 80 percent of the cases range from 6 years to 14 years, with more than 33 1/3 percent of the sentences falling between 8 years and 14 years and that in just over 33 1/3 percent of the cases the non-parole periods range from 5 to 10 years. The outliers in the statistics, that is, head sentences below 4 years or above 14 years, account for 11 percent of the sentences. It is highly likely that these sentences were imposed in respect of manslaughters committed in circumstances that were especially heinous on the one hand or of low culpability on the other.

16 The schedule produced by counsel for the prisoner also revealed a wide range of custodial sentences. They were from as low as 2 years to as high as 21 years. A number of them involved diminished responsibility; some involved provocation; some involved unlawful and dangerous acts. The sample was much smaller than that involved in the Judicial Commission statistics, and so it must be considered with caution. What emerges from those statistics is that where the verdict was based on provocation or diminished responsibility, the sentences tended to be higher than those based on unlawful and dangerous acts. It would seem that this is likely to be because in the former categories the intention to kill had been formed but not in the latter category.

17 Objectively the manslaughter of which the prisoner was convicted is in the high, indeed very high, levels of culpability. The prisoner killed his female companion. She was unarmed; he was armed with a dumb bell and a weight bar. She was not a strong person; he was. The very instruments with which he killed her were part of the equipment he used to ensure that he had a strong body. Her life was taken feloniously in circumstances which are not such as to be condoned or apparently condoned either for the prisoner or for others who might be tempted to act as the prisoner acted. A condign penalty must be imposed.

FACTS

18 As at 17 November 2001 the prisoner had been in a de facto relationship with Donna Pearce for approximately 6 months. They were living in a housing commission flat at Kingswood. The evidence reveals that their relationship was not tranquil, indeed on a number of occasions it had involved some degree of violence. The prisoner was a person who, even when unaffected by drugs, was short tempered. Donna Pearce had a history of drug abuse but apparently had been endeavouring to overcome this. The prisoner also had a history of drug abuse. The drugs he used had ranged from cannabis through to narcotics, but in the months before he killed Donna Pearce the prisoner had confined his illicit drug taking to amphetamines and cannabis. His drug intake of both these drugs was substantial and occurred over a protracted period. The effects of amphetamines include hostility and aggression and, where they are used regularly or in high quantities, may include violence.

19 On 17 November 2001 the prisoner and Donna Pearce had an argument. One of the neighbours, Mr Raymond Beard, who lived in the same block of units as the prisoner and Donna Pearce heard screaming and went out onto his balcony to see what was happening. He saw the prisoner and Donna Pearce down in the car park directly underneath his balcony. They were near the prisoner’s car. He went back inside his unit but the noise continued. He thought things were getting violent so he went out to have another look. He saw Donna Pearce fall to the ground after she had been hit by the prisoner with what Mr Beard believed to have been a metal pole or something of that description. That metal pole was undoubtedly exhibit O. It consists of a heavy steel bar that was over five feet, six inches (1.68 metres) in length, onto each end of which weights that are used in body building can be attached. It is an implement that is capable of inflicting serious injury on a person struck by it.

20 Mr Beard’s evidence was that after she had been hit Donna Pearce remained on the ground. As a result Mr Beard went inside his unit and phoned the police. He subsequently returned to his balcony by which time the victim was lying on the front seat of the car screaming. When Mr Beard saw Donna Pearce on the front seat of the prisoner’s car she was shaking in a way that he likened to a person who was having an epileptic attack. After that the car was driven off. Donna Pearce was still shaking as the vehicle was driven out of the driveway.

21 Mr Joseph Glover was also an occupant of the units in question. He gave evidence that on a day a few weeks before Christmas he had heard a female screaming in reasonably close proximity. He also heard a sound like metal hitting the ground. As a result he went out onto his balcony. He saw the prisoner and Donna Pearce in the prisoner’s car. She was crying. The prisoner apparently got out of the car, picked up the metal object, put it into the car which then drove off rapidly. He did not see Donna Pearce after the incident just described.

22 Another neighbour, Mr Glen Clarke also heard the sounds of an argument, which he fixed as occurring at about 1.00pm approximately one month prior to the date of making his statement on 19 December 2001. On the afternoon in question he was watching television in his unit, when he heard yelling and screaming coming from the driveway area of the units. He also heard the sound of steel hitting concrete. He recognised the voices as those of the prisoner and Donna Pearce. He heard the prisoner say “Get in the fucking car” and Ms Pearce’s voice swearing back at him. Having woken his flatmate, Ms Boileau, he went out onto his balcony in time to see the prisoner’s car at the end of the driveway, exiting the premises. However, he was unable to see anybody in the car.

23 After the prisoner’s car had left the premises, Mr Clarke went down to the driveway and garage area. There he saw a 10 kilogram weight, green in colour, lying to the left of where the car had been parked. The description was that of an exercise weight that could be fixed to a bar of the kind described by Mr Beard.

24 In the course of his evidence Mr Clarke said that the front driver’s side window has been smashed a couple of weeks before the incident just referred to. He was informed by the prisoner that Donna Pearce had smashed it.

25 The prisoner gave evidence at the trial. He denied that there had been an “incident … argument or anything like that”. He said that on the afternoon in question he and Donna Pearce had had “only a disagreement” and that this occurred prior to 2.00pm on 17 November 2001. He said that after the disagreement he left the unit to take his son to his mother’s place. Having done so he returned to the unit, arriving back some time after 2.15pm. He claimed that Donna Pearce had left the unit at about 2.30pm and that while she was gone he packed his belongings and those of his son and carried them downstairs to put them in his car. He was leaving. His belongings included two 10 kilogram weight plates, a weight bar and two dumb bells. He took these downstairs and whilst he was packing the car Donna Pearce returned. Some obscenities passed between them and the prisoner’s evidence was that one of the dumb bells over balanced and fell onto the ground. He said that this was picked up by Donna Pearce who then, according to him, said “You’re not going anywhere cunt. I will smash every window in the car.” To which the prisoner replied “You smash my windows and I will smash you with this”, meaning the weight bar (exhibit O).

26 The prisoner then claimed that he put the weight bar through the back seat onto the front seat and got into the car. When he did so he said he felt a blow to the back of his right shoulder like a very hard punch. He spun around, whereupon he said that Donna Pearce struck him in the head with one of the dumb bells. He claimed that he grappled with her grabbing hold of her hand and trying to prize her fingers off the dumb bell. He said there was a short struggle in the course of which he hit her on the nose with the dumb bell and the other side of the dumb bell hit her in the temple but the blow “wasn’t very hard”. He claimed never to have actually had hold of the dumb bell but when trying to ward off further blows struck by her he struck her with the dumb bell in the left temple area. He thus claimed that there were only two blows sustained by Donna Pearce, namely one to the nose and left temple, another to the left temple. I did not find this account credible and do not accept it as a correct or truthful account of what occurred.

27 Having done this he claims that he said to her “it’s all right I will take you to the hospital”. The Nepean Hospital was located in the immediate vicinity of the block of units in which Donna Pearce lived. The prisoner said that he found that the victim “was unresponsive”. “I checked her pulse on that occasion and I couldn’t locate a pulse”. He also said that he drove to a spot opposite the hospital entrance checked her pulse again, was unable to find any and observed that she was not breathing. So instead to taking her to the hospital he covered her with a dressing gown and drove to Lapstone on the Blue Mountains, where he dumped her body in the bush.

28 After the prisoner had killed Donna Pearce and hidden her body in the bush he returned to Kingswood where he pretended that Donna Pearce was not dead, but was merely absent from her unit. He took her jewellery, which he later pawned.

29 Subsequently, in company with a female companion he drove to Queensland. In the course of that journey he confided to his female companion, Geraldine Boyle, that he and Donna Pearce had had a fight, she had threatened to smash his car window and he hit her with a dumb bell, splitting her skull. However, after the first hit he said she was still alive so he covered her with the dressing gown to hide her, played some music and watched her take her last breaths. Subsequently, he put her into the boot of his car.

30 Ms Boyle was cross examined at length and in relation to major parts of her evidence. The essential suggestion was that the evidence as summarised in paragraph 29 above should not be accepted. I am of opinion that her evidence as to what the appellant told her should in essence be accepted. She would not have known the details of the events involved in the death of Donna Pearce but for what she was told by the prisoner. Secondly, her evidence is consistent with that given by Mr Beard, who was a credible witness. Thirdly, her evidence is consistent with admissions made by the prisoner to a number of people after the killing, including certain of his friends.

31 After the prisoner had initially disposed of Donna Pearce’s body he drove to Hervey Bay, Queensland where he stayed with a friend of many years standing, Mr Mark Chinnery. The prisoner and Mr Chinnery were “good mates”. Whilst he was at Hervey Bay the prisoner confided in his friend. He told Mr Chinnery that Donna was dead and that he had killed her. He said that they had had some sort of an argument, and that he had hit her in the head with the dumb bells and as she was too badly injured to take to hospital and that he had to get rid of her. He went on to say that Donna Pearce had hit him with a shoe and that “he just snapped and hit her with the dumbbell”. The prisoner also told Mr Chinnery that he had hit her with the weight bar, that she then screamed so he “hit her again to make her stop screaming and she regressed into a child like state and did as she was told”. He also told Mr Chinnery that he had “wrapped … jumper leads around her head” and had used them to strangle her, because she was still alive. In cross-examination counsel for the prisoner suggested that the prisoner has said that “he had hit her 42 times with a dumbbell.” However Mr Chinnery was unable to remember any particular number. It was from the premises at Hervey Bay that the prisoner returned to Sydney to remove the body of Donna Pearce from Lapstone in order to hide it deeper in the bush at Wentworth Falls.

32 Mr Chinnery was cross-examined to suggest that the prisoner had said that Donna Pearce had hit him with a dumb bell. He denied this, adhering to his evidence that the implement that he had been told she had used was a shoe. He was also cross-examined about conversations that the prisoner had had with him concerning the events of 17 November 2001 from which it emerged that the prisoner had from time to time, in dribs and drabs, expanded upon, perhaps embellished, his account of the killing of Donna Pearce. The way in which these conversations took place and the exaggerations which I am satisfied were involved in some of them, clearly show that the prisoner was unrepentant and indeed tended to show off about what he had done. I am satisfied that Mr Chinnery accurately conveyed the essence of the admissions made by the prisoner concerning the way in which he hit Donna Pearce in the head with the dumb bell.

33 Another of the people to whom the prisoner spoke about the events of 17 November 2001 was Ms Windeatt. He told her that he had killed Donna Pearce. She asked him “Have you beaten her unconscious?”; to which he replied, “No, I’ve killed her.” He was then asked why. His reply was “She wouldn’t do as she was told and she wouldn’t get off the methadone”.

34 The detailed description of the killing given by the prisoner to Ms Windeatt was that in the course of packing his possessions into his car he had a weight bar in his hands and Donna Pearce threatened to break a window of the car, removing her shoe for this purpose. The prisoner then told Ms Windeatt that he said to Donna Pearce: “You break this fucking window and I will cave your head in, cunt, with this bar” and he proceeded so to do when Ms Pearce (according to the prisoner) broke the window. The prisoner told Ms Windeatt that the killing was affected by striking her “three to four times with the weight bar in the head.”

35 According to Ms Windeatt’s evidence the prisoner told her that Ms Pearce was bleeding profusely and asked to be taken to hospital. He covered her with a dressing gown and said he was going to take her to the hospital but, according to what the prisoner told Ms Windeatt, once he had covered her head with the dressing gown he hit her several more times with the weight bar. He also told Ms Windeatt that he had placed a rope or wire around her neck and had driven around until he was satisfied that she was dead. He then took her to Lapstone, where he dumped her body in the bush.

36 Ms Windeatt was cross examined at some length. It was suggested to her that the prisoner had told her that the deceased had struck him with a weight whilst the two of them were in the car. She rejected this suggestion. It was also suggested to her that the conversation about the prisoner hitting Ms Pearce with the weight bar did not occur. Again, this suggestion was firmly rejected. It was further suggested that the conversations that she had with the prisoner did not include any discussion of his strangling Ms Pearce. This too was firmly rejected by Ms Windeatt. I thought Ms Windeatt was a credible witness. She had been a friend of the prisoner for almost 8 years and had been in a relationship with him at one time. Although she was estranged from him at the time of the conversations to which I have referred, she gave her evidence in a forthright, credible manner. I am of opinion that her evidence was credible and I accept the essence of it.

37 There was no forensic evidence that clearly established that Donna Pearce had been strangled. The state of her body when its whereabouts was revealed by the prisoner, did not permit of any such evidence being obtained. Whilst there were jumper leads and other items in the boot of his car that could have been used to strangle Donna Pearce in the way the prisoner told Ms Windeatt he had done, the forensic testing of this material did not produce a result sufficiently positive for the experts to state that such items had been used in the way stated by the prisoner. Notwithstanding this I have no doubt that the prisoner told Ms Windeatt that he had strangled Donna Pearce, but as the evidence stands and having regard to the standard of proof necessary to support a positive finding I am unable to make an affirmative finding that he did so. In my opinion the statements made by the prisoner in this regard may well have been braggadocio on his part to demonstrate his dominance and perhaps to instil some fear into Ms Windeatt so as to deter her from going to the authorities. The fact that he made a like statement to his friend Mr Chinnery adds to the strength of the conclusion that he claimed to have strangled Ms Pearce, but in the absence of positive scientific evidence I do not think it is appropriate to make a positive finding adverse to him in this regard.

38 Yet another person to whom the prisoner spoke after he had killed Donna Pearce was Christine Davis. She had known the prisoner for three years. At one stage she too had been in a relationship with him, as a result of which a female child had been born. The prisoner and she met at the Lake Haven Shopping Centre so that the prisoner could see his daughter. They then drove to Sydney and in the course of returning to the Central Coast, the prisoner stopped the car at Normanhurst and had a discussion with her about the killing of Donna Pearce. The version of the killing that he then conveyed to Ms Davis was that there had been an argument between the two of them and that he had told Ms Pearce to get into the car or “he’d put the weight rod through her head”. She continued yelling at him, but got into the car. Ms Davis said that the prisoner told her that “he screamed at her to shut up and Donna didn’t shut up and he then grabbed the dumb bell from in between his legs and struck her to the right side of the face”. He also told her that he had “struck her again and again and … that he couldn’t stop”. He also told her that he had wrapped thin wire around her throat twice and jammed it in the car door. He gave chapter and verse of Donna Pearce’s death, of his putting her into the boot of his car and playing music. He told her how he had taken her body to the Blue Mountains, left her posed with her legs splayed apart “so that the maggots and ferals would decompose her quicker”, how he had taken her jewellery, pawned it and drove to Queensland. He said that “the murder weapon, the dumb bell, was put underneath the Mark Chinnery’s house at Hervey Bay”. That is where it was found by police when those premises were searched at about the time of the arrest of the prisoner on 24 December 2001.

39 For the post mortem examination of Ms Pearce there were just bones. The forensic pathologist, Dr Ellis, said that there was insufficient evidence to definitely pinpoint the precise cause of death. There were, however, a number of fractures to the skull indicating trauma to the head. These fractures were extensive, one of them depressed, such as could have been caused by being struck by a dumb bell. Dr Ellis was able to point to the fractures to the skull as being a likely cause of death. They were to three main areas; just under the right cheek close to the right side of the nose; a number of fractures in the region of the left temple and the bones around that region; two small fractures at the back of the head. The blows necessary to cause fractures of the kind observed would have been sufficient to cause her death by one of several possible mechanisms. I am satisfied in accordance with the jury’s verdict, that the actions of the prisoner caused the death of Donna Pearce. He first hit her in the head with the weight bar. He later hit her repeatedly in the head with a dumb bell. These blows caused the fractures to her head.

40 The attack on Donna Pearce occurred at a time when the prisoner was acting under the effects of provocation. This is consistent with the jury’s verdict. He was a person who was short tempered. This characteristic was exacerbated by his protracted and heavy use of amphetamines and cannabis over a period that relevantly extended some months before the killing. On 17 November 2001 he, as he told Mr Chinnery, “just snapped” and began hitting Donna Pearce with a dumb bell that he had in his car. Donna Pearce probably did not die immediately but the interval between the time that he hit her with the weight bar and beat her with the dumb bell and her death was not long. She was almost certainly dead before he decided to hide her body at Lapstone. She was certainly dead by the time he actually hid her body at Lapstone.

41 The details of the way in which the body of Donna Pearce was treated by him both in hiding it in the bush at Lapstone and later removing it from Lapstone and hiding it deep in the bush at Wentworth Falls are well after the fact of her death. They are too unpleasant to recount in these Remarks on Sentence. Furthermore to do so would be very distressing for Donna Pearce’s family. They are relevant to the question of sentence only to the extent that they demonstrate, in my opinion, a callousness on the part of the prisoner that is inconsistent with any genuine remorse at that time. I am satisfied that there was not then, and there is not now, any genuine remorse on the part of the prisoner for having killed Donna Pearce.

42 The circumstances in which Donna Pearce was killed and the fact that the provocation asserted by the prisoner was not great, bodes ill for the future of the prisoner on release. He is revealed as a hard man, readily aroused, lacking in self-control and quick to inflict injury on another. In my opinion the manslaughter of Donna Pearce by the prisoner is at the high, indeed very high, end of the spectrum of culpability. As a consequence the determination of his sentence should be approached on the basis that the objective culpability of the crime for which he is to be sentenced is very high.

VICTIM IMPACT STATEMENT

43 A victim impact statement was tendered pursuant to the provisions of Div 2 of Pt 3 of the Act. The statement, dated 17 September 2003, was prepared and signed by Donna Pearce’s mother (Kathleen Gray), father (Ron Pearce) and sister (Sherre Pearce). It was read by Mr Gregory Dix, a first cousin of the victim Donna Pearce, because her mother, father and sister felt they would become too upset if it were read by one of them.

44 The Victim Impact Statement revealed that Donna Pearce left behind not only her mother, father and sister, but also three children - two sons, one aged nine, one aged two, and a three year old daughter.

45 The Victim Impact Statement also revealed that all the adults felt the pain associated with the death of the victim very much. It stated that all of them had experienced “intense grief, anger, loss and sorrow”. Furthermore her disappearance is something that the members of the family had to struggle to come to terms with. In the immediate aftermath of her disappearance they engaged in denial, hoping against hope that she would come back unharmed. Her older son refused to believe that his mother had disappeared and would not return. Their grief and sense of suffering were exacerbated by the prisoner’s “lengthy silence” on the whereabouts of Donna Pearce’s body. This prevented the family from having an opportunity to say goodbye and when the whereabouts of her remains was revealed by the prisoner, the Victim Impact Statement poignantly states that “all we were left with to bury were her bones”.

46 It is clear from the Victim Impact Statement that the killing of Donna Pearce and matters associated with it have had a significant adverse effect on the health and wellbeing of those who prepared the Victim Impact Statement and beyond. Her mother and her older son have experienced sleep disturbance and nightmares, whilst Sherre Pearce has suffered from an eating disorder. Their faith and trust in people have been undermined. Furthermore the two younger children will grow up having no memories of their mother; all her children will be deprived of the love and affection of a mother.

47 The great sadness and sense of loss which the family have expressed is understandable. So too is their sense of grievance against the man responsible for their daughter’s and sister’s death. The lives of all of them have been diminished by the tragic loss which they have experienced. The community has also been diminished by the loss of a relatively young life.

48 The sense of loss, the sadness and other effects on Kathleen Gray, Ron Pearce, Sherre Pearce and the children of Donna Pearce from the death of their daughter, sister and mother can never be compensated by any sentence which the court may impose on the prisoner. Their responses to her death, to an extent, mirror the reactions of ordinary members of the community to a death such as occurred in this case. However, because of the intimate connection between the makers of the statement and Donna Pearce, the effects of the loss are more profound on them. The sympathy of the court goes out to all the members of the family.

49 I have considered the Victim Impact Statement, but conformably with authority (Regina v Previtera (1997) 94 A Crim R 76; Bollen v Regina (1998-99) 99 A Crim R 510 have not made use of it so as to increase the penalty which should otherwise be imposed.

PSYCHOLOGICAL EVIDENCE

A. PROBATION AND PAROLE SERVICE REPORT

50 The Probation and Parole Service prepared a report which is dated 30 September 2003. It details the history of contact between that service and the prisoner dating back to the prisoner’s time as a juvenile. It shows that after a substantial number of prison terms he was released as a special category parolee on 23 June 1995. That parole expired on 23 February 1996 and during his time on parole he apparently committed only one minor offence. The prisoner told the probation and parole officer that the time between his release on 23 June 1995 and his arrest on 24 December 2001 was the longest period in his life that he had not been in trouble with the law.

51 The prisoner gave a history of abandonment as a child, of violence and lack of love and care. The violence was said to have been perpetrated both by his mother and his stepfather. However the prisoner indicated that he did not wish any members of his family to be contacted by the probation and parole service. In the event the service was able to contact his mother, who “emphatically denied” any period of abandonment of the prisoner, notwithstanding that the prisoner had fixed the term of abandonment as two years. Furthermore his mother stated that she was working three jobs at the one time - which appears to be in a period in which the prisoner was attending private schools, as he did for some seven years.

52 The prisoner claimed to have had a reasonable relationship with his stepfather. This seems somewhat at odds with an earlier claim by him that his stepfather had been violent to him. On the other hand the prisoner’s mother said that the relationship between the prisoner and his stepfather was “very poor” because of the prisoner’s “bad behaviour as a child and adolescent”. That behaviour she characterised as “violent and uncontrollable”, but despite such behaviour she said she had given her son assistance and support and opportunities to redeem himself. She described him as short-tempered but good natured when not using illicit drugs. However with the use of illicit drugs the prisoner became violent. The criminal history of the prisoner tends to confirm his mother’s description of his conduct. There are repeated offences by the prisoner as a juvenile extending over a long period. These include escaping from custody on more than one occasion and violence.

53 The report expresses no conclusion except that when released from custody the prisoner would require supervision both for the benefit of the community and of the prisoner himself. This report does not give grounds for confidence that on release the prisoner will be a law-abiding citizen.

B. CONSULTING CLINICAL PSYCHOLOGIST – MR CHAMPION

54 At the request of the representatives of the prisoner, a consulting clinical psychologist, Mr Peter Champion, undertook a psychological assessment of the prisoner at Parklea Prison on 17 September 2003. To equip himself for the assessment, Mr Champion interviewed the prisoner over the course of some four hours and was supplied with a report by Dr Westmore, forensic psychiatrist (7 May 2003), a report by J Machlin, a clinical psychologist (14 July 2003), a copy of the prisoner’s criminal history and a transcript of some of the evidence given at the trial. The reports by Dr Westmore and J Machlin were not tendered nor were they called to give evidence. The contents of their reports are not known except to the limited extent revealed in the early part of Mr Champion’s report.

55 The prisoner gave a history to Mr Champion of poly-substance abuse, the principal drugs involved being amphetamines, heroin and cannabis. The history reveals that he had the benefit of a private school education, gaining the school certificate notwithstanding that he did not complete Year 10. A series of well recognised tests was carried out on the prisoner which resulted in him achieving an overall score in the top half of the average range, in the middle of the average range on the Verbal Scale but with a relative weakness in the area of social awareness. On the Performance Scale his score was just above the top of the average range into the high average range. As a result of these tests Mr Champion was of the opinion that the prisoner was “a man of upper average to high average intellectual potential” whose literary and numeracy skills were sound. Mr Champion’s conclusion was that there was no basis for considering lack of intelligence as a matter in mitigation.

56 The mental history of the prisoner did not reveal any antecedent psychiatric treatment or familial mental illness. However, he gave a history of what he described as “paranoia”, which he related in part to amphetamine use, but Mr Champion was not able to elicit any history suggesting systematised paranoid delusions. The prisoner denied any depression or current suicidal tendencies, although he did say that had he been convicted of murder he might have considered suicide. Recollections of the events concerning Donna Pearce were said by the prisoner to be troubling and saddening, but did not produce any clinical disorder.

57 The first conclusion arrived at by Mr Champion was that the history of the prisoner was consistent with some oppositional defiant and anti-social features in childhood and adolescence. In adulthood the history was suggestive of an anti-social personality disorder however, such a diagnosis was complicated by the prisoner’s drug abuse over time. The possibility of a paranoid personality disorder was raised and Mr Champion thought that the prisoner displayed a personality “with high levels of suspiciousness, distrust of others and alienation from others”.

58 The history of drug abuse given to Mr Champion by the prisoner revealed that after a short foray into sniffing glue at 15 he desisted, but that at 16 he became a regular user of cannabis. He proceeded to amphetamines at 17 and thereafter progressed to cocaine and heroin. Although the prisoner described himself as a “drug user” rather than a “drug addict” and denied being “drug dependent”, Mr Champion formed the view that he could not support such a distinction and that it represented a form of denial by the prisoner. Mr Champion described the prisoner as “tough minded” with “significant personality deficits the most common … being … paranoia.” His general appraisal was of a man who was strongly built and worked out to maintain his physique, was “articulate” and “precise” with a “lack of insight”.

59 The prisoner gave Mr Champion a history of a childhood in which he was in effect abandoned by his mother for a period of some two years after which she returned and, whilst running a boarding house, engaged in relationships with some of the boarders. During this time he claims to have been sexually abused by two of them. When his mother was interviewed by others she (as I have already stated) vehemently denied any such abandonment. She claimed that she had worked very hard to maintain the prisoner, at one stage doing three jobs to keep him at private schools. It is not possible to resolve this conflict satisfactorily. However, the prisoner presents as, and I am satisfied is, a manipulative person and in assessing him I am not prepared to accept the details of supposed abandonment and sexual abuse asserted by the prisoner to Mr Champion. He was after all sent to private schools. That involved expenditure by his mother and suggests a concern on her part that is inconsistent with the picture painted by the prisoner.

60 The history of the relationship with Donna Pearce was, according to the history given to Mr Champion, “quite idealised”. That is inconsistent with the evidence given at the trial. There the relationship was painted as tempestuous and violent.

61 The history given to Mr Champion by the prisoner of the events preceding and involving the killing of Donna Pearce is interesting. It reveals that although he had taken no drugs on the day of the killing he had been using amphetamines a number of days each week for some four months beforehand, together with a high intake of cannabis on a daily basis. He gave no history of Ms Pearce threatening to smash the windscreen of his car, but claimed that she was the aggressor, striking him with a dumb bell. His version of the events to Mr Champion was that he grasped the dumb bell whilst it was in her hand and pushed it away from him. As he did so it struck her head on what appears to have been two occasions. This is inconsistent with the evidence given by independent witnesses and I do not accept it. In my opinion it is a manifestation of the manipulative character of the prisoner and his desire to paint himself in the best light possible.

62 He expressed remorse to Mr Champion in quite effusive terms. As Mr Champion said these expressions by an intelligent man occurred after he had “had a significant period of time to consider what he says and should say”. Although Mr Champion did not find his expressions of remorse “incredible” and did not think that his actions in dealing with the body of the deceased “necessarily” detracted from his remorse, I am not satisfied that he was or is remorseful, except in the sense that he is sorry that he will now have to spend a considerable period in prison.

63 Mr Champion was cautious in his assessment of the future of the prisoner. His previous history of aggression, chronic offending, problems with relationships, drug abuse, maladjustment and personality dysfunction together with questionable insight, negative attitudes and impulsivity were all noted as risk factors for the future. I am sure they are. Mr Champion’s ultimate conclusion was not reassuring. He opined that:

“While there is a risk of Mr Williams acting in an aggressive fashion in the future, it is not clear that this would necessarily end in a result such as in this case.” (italics added)

64 In my opinion the report reveals a series of risk factors that auger badly for the future. A high level of aggression, repeated criminality involving violence in a number of instances, long term drug abuse and personality disorders all indicate that when free of restraint the prisoner is likely to be involved in further violence. Whilst this may not “necessarily” lead to the death of another person, it could do so. In my opinion, the prisoner is a risk to society and will be so on release.

C. REPORT OF NURSE JEFFRIES

65 The only other psychological evidence that was tendered on behalf of the prisoner was a report prepared by a clinical nurse consultant attached to the Drug Court of New South Wales, Ms Sue Jeffries. It was dated 7 October 2003. Her report came into existence in a curious way and came before the Court somewhat belatedly. The prisoner’s initial sentence hearing took place on 8 October 2003. Subsequently the solicitors for the prisoner informed the Court that they had received a copy of a drug and alcohol report relating to the prisoner. This was forwarded to the Court under cover of a letter dated 26 October 2003, although the report was dated 7 October 2003. At all material times Ms Jeffries was a clinical nurse consultant attached to the Drug Court at Parramatta. The prisoner was at the material time detained in the MRRC. Their paths crossed in January 2002. How this occurred is not clear from the evidence. However it emerged that Ms Jeffries has known the prisoner since he was 18 years of age, that is, in excess of 19 years.

66 Following their meeting in January 2002 Ms Jeffries assigned herself to the prisoner’s case, as she conceded in cross-examination. In order to facilitate this, she requested special permission from the Governor of the MRRC and the Chief Executive Officer of Corrections Health Service to visit the prisoner regularly. She did so on a weekly basis for several months until he was moved to Parklea Correctional Centre, where she visited him on 3 October 2003 so that he could “assist me in writing this report”.

67 The report details a history by the prisoner in respect of his use of and dependence on illicit drugs. That history is reasonably consistent with the history obtained by others. However it does indicate that he had availed himself of methadone treatment on three occasions with varying periods of success, the last being in 1996 as a result of which the prisoner claimed that he had not thereafter used opiates. What emerges from the report is that he substituted amphetamines, gradually increasing the use of these drugs until they were being used six days a week, continuing virtually up to the time of the killing of Donna Pearce.

68 The effects of amphetamines are chronicled in her report. Such effects include hostility and aggression, and when they are used regularly or in high quantities, the user may suddenly become violent for no apparent reason. Ms Jeffries elicited from the prisoner his acceptance that he was “a drug addicted person” who, if he used drugs at all, would not really be able to control his level of use.

69 The report contains no indication of remorse on the part of the prisoner. Nor is there any express prognosis. However the history and references to his inability to deal with the taking of any illicit drugs in my opinion does not bode well for the prisoner or for the community. Curiously the report makes a plea for a lengthy parole period and concludes by wishing the prisoner “well in his supplications to the Court”.

70 I do not think that the circumstances in which the report by Ms Jeffries came into existence reveal a proper professionalism. Her association with the prisoner and her assigning of herself to his case do not, in my opinion, betoken the level of the professional detachment that should characterise an expert witness. The request by the prisoner for the report, rather than a request by his solicitors, and his participation in the writing of such report are matters of concern. As it transpires the report itself is not of real assistance to the prisoner. Indeed the evidence that it provides in relation to the effects of long-term use of amphetamines is, in my opinion, adverse to the prisoner. Their use in the months before Donna Pearce was killed meant that a man who was short tempered, even at the best of times (as the prisoner’s mother described him) was more likely to be aggressive and violent because of the drugs that he had been taking in quantities over a substantial period.

71 The report by Ms Jeffries supports the conclusion that after his release the prisoner is likely to revert to the use of drugs and to commit further offences. That is the conclusion to which I have come.

PRIOR CRIMINAL HISTORY

72 The prisoner has a criminal history that extends back to 1982 when he was only 16 years of age. It is apparent that he was a child who fell foul of the law early in his life and continued to flout the law throughout his adult life. In June 1986 he was convicted of armed robbery, being armed with intent to rob (two counts) and assault occasioning actual bodily harm. He was sentenced to a substantial term of imprisonment in respect of these offences. He escaped from custody and was later sentenced to a further term of imprisonment. In 1989 he was again sentenced to a substantial term of imprisonment for malicious wounding, attempted larceny of a motor vehicle and larceny of a motor vehicle. The Remarks on Sentence of the District Court Judge in relation to these charges confirm that the offences were committed whilst he was on parole and sadly, but accurately, reveal that the prisoner was ‘an experienced criminal who… has spent the bulk of his growing years in institutions and other custodial situations.” The circumstances of the malicious wounding involved an attack with a knife on a motorist who had caught the prisoner in the act of attempting to steal his motor vehicle.

73 In 1989 he was again convicted of robbery, this time in company, and was again sentenced to a substantial term of imprisonment. He again escaped from custody and received an additional term of imprisonment. Whilst in prison in mid 1992 he assaulted a prison officer and was sentenced to an additional term of imprisonment.

74 The antecedent criminal history of the offender is prescribed in s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999 as one of the aggravating factors to be taken into account in determining the appropriate sentence for the offence. However the prisoner has already served his sentence for each of the crimes to which I have referred and for others to which I have not referred but that did not appear to involve violence. It is inappropriate therefore to increase the penalty that should be imposed on him so as to lead to a penalty being imposed that is disproportionate to the offence of manslaughter for which the prisoner is to be sentenced. If it were otherwise the effect would be to impose a fresh penalty for past offences. However, as was pointed out in Veen v The Queen (No 2) (1987-1988) 164 CLR 465:

“The antecedent criminal history is relevant… to show whether the instant offence is an uncharacteristic aberration or whether he offender has manifested a continuing attitude of disobedience to the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.” (at 477)

75 It is appropriate, in my opinion, to have regard to the antecedent criminal history of the prisoner in the present case as demonstrating that his brutal actions were not an uncharacteristic aberration. His criminal history indicates that he has yet again demonstrated disobedience to the law, a propensity for violence when he is crossed or thwarted and highlights the need to impose condign punishment to deter the prisoner and others from committing further offences of a like kind.

STATUTORY AND OTHER MATTERS

76 The maximum penalty provided for manslaughter is imprisonment for 25 years (s 24). However, the Court is empowered to impose a lesser sentence (Crimes (Sentencing Procedure) Act 1999, s 21(1), (2)).

77 Considerations of retribution, deterrence and prospects of rehabilitation are material to the sentencing of the prisoner in the present case. So too is the consideration of the objective seriousness of the crime committed by him and the total criminality involved.

78 The Crimes (Sentencing Procedures) Act 1999 (the Act) makes provision for regard to be had to a number of considerations. The primary obligation of the Court is to impose a sentence that is appropriate in all the circumstances of the case (s 21A(1)). In determining the appropriate sentence for the particular offence the Court is required to take into account certain specified aggravating factors and certain specified mitigating factors that are relevant and known to the Court as well as any other objective or subjective factors that affect the relative seriousness of the offence (s 21A(1)(a), (b) and (c)). The aggravating factors in the present case that are known and relevant are those specified in s 21A(2)(b)(c)(d)(g) and (l). The mitigating factors in the present case that are known and relevant are those specified in s 21A(2)(b) and (c).

79 The killing of Donna Pearce involved the actual use of violence. She was beaten to death. The attack on her was cruel. Her death was caused by a man who has a long history of previous criminal convictions, a number of which involved violence. The outcome for Donna Pearce was fatal. The prisoner was a powerful man. Donna Pearce was vulnerable. However, her killing was not planned. It was a consequence of a man who was bad tempered by nature and who had made matters worse by his persistent and high level use of illicit drugs, being provoked by her. What she did was not all that provocative but it was sufficient, consistently with the jury’s verdict, to meet the criteria of provocation. Although the killing did not amount to murder, it was a very bad case of manslaughter in the high, indeed very high, levels of culpability for such crime.

80 The provisions of s 23(1) of the Act also need to be considered because the prisoner ultimately led police to the location where he had finally hidden the body of the deceased. However he did not do so until many months after he had been arrested. By that time the body had decomposed and been devoured by animals in the area, so that, in effect, only scattered skeletal remains were found.

81 The prisoner’s revelation of the whereabouts of Donna Pearce’s body was of no real significance and usefulness in relation to the investigation of her killing. The effluxion of time and consequent degradation of her body meant that no real forensic assistance was obtained from an examination of her body. For example, because of the absence of any residual soft tissue, it was not possible to substantiate the admissions made by the prisoner that he had strangled Donna Pearce after he had hit her with his body building equipment. My judgment is that the prisoner waited for a lengthy period, that is until such time as he believed that the body would no longer be in a condition that would assist the authorities, before he made its whereabouts known. The information provided to the authorities by the prisoner was of no real value and I do not accept that it was either complete or reliable or, in most respects, truthful.

82 The death of Donna Pearce had an adverse effect on her family. This is relevant by virtue of s 23(2)(a) of the Act. Even after the prisoner had been arrested and charged, there was no closure for them, because their daughter’s body was not available for them to bury. The revelation of where her body had been hidden and what had occurred to it during the time between the day of her death on 17 November 2001 and the finding of her body on 22 August 2002 added anguish to the situation, but at least it gave an opportunity for their daughter’s remains, such as they were, to receive a proper burial. Whilst such considerations do not appear to fall within s 23(2)(a) of the Act they are, in my opinion, relevant in that they show an absence of contrition on the part of the prisoner. He could not but be conscious that the hiding of the body following the killing would exacerbate the anguish of the members of the family, but for his own purposes he chose not to reveal the whereabouts of the body to the authorities for many months.

83 I am not satisfied that the other matters referred to in s 23(2) of the Act apply to the present case, other than that referred to in s 23(2)(j), namely the likelihood that the prisoner will commit further offences after release. Having regard to the violence involved in the present offence, the prisoner’s age, his criminal record (which includes violence), his behaviour after the commission of the offence and the psychological evidence that is before the Court, I am of opinion that he is unlikely to change either his attitudes or behaviour notwithstanding a substantial prison sentence. I am satisfied that he is likely to commit further offences after his release. Whilst these may not involve the taking of human life, they are likely, in my opinion, to involve violence.

SUBMISSIONS ON BEHALF OF THE PRISONER

84 It was submitted on behalf of the prisoner that the jury’s verdict of manslaughter in respect of Donna Pearce should be determined to have been arrived at in reliance on an unlawful and dangerous act having occasioned her death. I do not agree. The prisoner himself gave evidence of matters that were put to the jury as founding a verdict of manslaughter on the basis of provocation. Accident and absence of intent to do any injury to Donna Pearce were also put to the jury, as was unlawful and dangerous act. As the sentencing Judge I am required to find the relevant facts. Those findings of fact must be consistent with the jury’s verdict. My conclusion that the prisoner killed Donna Pearce whilst the effects of provocation were operating on him is consistent with the jury’s verdict. In this regard it is interesting to note that of a number of questions asked by the jury, the last three were:

“Your honour,
Can you please reconvene the court and walk us through the issue of provocation again?;

and

“If an event or action is provoked, can a subsequent action or inaction that is still part of a chain of events be separately considered as murder?”;

and

“Your honour,
Does not seeking medical attention negate provocation if the deceased was not dead when they reached the hospital?”.

The final question was asked at about 11.00am on the last day of the trial.

85 The jury returned its verdict immediately after the luncheon adjournment on 13 August 2003. From the foregoing it is, in my opinion, clear that quite late in their deliberations the jury had come to consider the issue of provocation. This is consonant with the sequence of the written directions that were given to the jury and went into the jury room with them. My conclusion that Donna Pearce was killed by the prisoner as a result of provocation was arrived at independently of the foregoing examination of the questions asked by the jury. Those questions however, in my opinion, tend to support the conclusion at which I have arrived.

86 The findings of fact made and the conclusion to which I have come mean that the prisoner in fact had the intention to kill Donna Pearce. That he had such an intention is supported by a number of the admissions that he made after the killing. However he was convicted of manslaughter, not murder, and must be sentenced for the crime of which he was convicted.

87 I have already referred to the psychological evidence tendered at the Sentence Hearing. It contains a good deal of subjective material relating to the prisoner. His counsel stressed the following:

(i) the prisoner’s long history of incarceration;
(ii) his last period of parole that was successful except for one minor offence;
(iii) the prisoner’s expression of remorse;
(iv) the prisoner has personality problems and these will not be alleviated by a long term of imprisonment;
(v) that the failure to reveal where Donna Pearce’s body was should not be used to detract from the prisoner’s right to remain silent.

As to (i)

88 The prisoner has spent a great deal of his life in correctional institutions. It is likely that this has had the effect of hardening him. He is now of an age where reversing that effect will be, at very least, extremely difficult, if possible at all. He is now at a time of life where his prior history, although unfortunate in one sense, is more indicative of hardened attitudes and as a subjective factor in mitigation of the sentence that should be imposed for the manslaughter of Donna Pearce, I do not think that it should be given any great weight.

As to (ii)

89 Whilst the prisoner did have a period during which he did not come under adverse attention, the period included a time in his life in which he was heavily reliant on illicit drugs. However, the fact that he did not have any convictions during this period is to his credit and I have regard to it in his favour.

As to (iii)

90 I have already indicated that notwithstanding what the prisoner said about remorse I am not satisfied that he was, or is, remorseful about having killed Donna Pearce. He did not express remorse to the court. He did not express remorse to the people to whom he made admissions after the killing. He did not express remorse to the Probation and Parole Service officer. True it is that he said to her that “he was devastated that (Donna Pearce) had died”, but I cannot help but conclude that his devastation was because he realised that what he had done could well result in his being imprisoned for a lengthy period.

91 The prisoner expressed “his deep feeling of loss occasioned by (Donna Pearce’s) death” to Mr Champion. However his evidence at the trial indicated that his short relationship with Donna Pearce was over and that he was packing up to leave at the very time he killed her. I do not accept that what was said to Mr Champion was indicative, or is now indicative, of true remorse.

92 There was no expression of remorse recorded in the report prepared by nurse Sue Jeffries, notwithstanding that the prisoner helped her to write it. In the course of her cross-examination, nurse Jeffries said that the prisoner had told her that “he didn’t do it”. She also said that he told her that “he was very sad, very sad about the circumstances that lead to the death”. It is curious, if this had been said, that it was not included in her report. She was an experienced person, whose work at the Drug Court would have made her conversant with the value of true remorse in the context of sentencing. Her evidence that it had been said was challenged by the Crown. Even if, as I doubt, the expression of sadness to which I have referred was uttered by the prisoner, I am not satisfied that it indicates true contrition.

93 I am not satisfied that there is any contrition on the part of the prisoner.

As to (iv)

94 I have already dealt with the psychological evidence. This includes the personality problems of the prisoner. Whilst I have regard to them, I do not think that in the circumstances of the present case they constitute a factor that should reduce an otherwise condign sentence.

As to (v)

95 I have already dealt briefly with the refusal of the prisoner to reveal where Donna Pearce’s body was until many months after he had moved it to the bush at Wentworth Falls. The revelation was made to an investigator with the Police Integrity Commission. To that officer the prisoner asserted that he and Donna Pearce had been consuming substantial amounts of prohibited drugs prior to her death and that “she had in fact died of an overdose”. He denied beating Donna Pearce but did admit that he had “placed her body into his car and had driven to bushland where he dumped her body”. He further informed the investigator from the Police Integrity Commission that “on the instructions of his solicitor” he had not informed the police of the location of Donna Pearce’s body.

96 The submission on behalf of the prisoner that the prisoner’s refusal to reveal the whereabouts of the body should not be used to derogate from the prisoner’s right to remain silent is correct and I have not done so.

CONCLUSION

97 The killing of Donna Pearce by the prisoner on 17 November 2001 was, according to the jury’s verdict, manslaughter. That crime was committed as a result of provocation. The nature of the crime was very serious. It is in the very high levels of criminality for manslaughter. This objective seriousness is a matter fundamental to the sentence to be imposed. The subjective features that emerge from the evidence and have been relied on in the prisoner’s favour give only a minor benefit to the prisoner. The sentence to be imposed must be proportional to the circumstances of this crime of feloniously taking a human life, that of Donna Pearce. In my opinion a sentence of imprisonment for 14 years is appropriate. I do not think that there are any special circumstances that operate to reduce the relationship between head sentence and non-parole period referred to in s 44(2) of the Crimes (Sentencing Procedure) Act 1999. Accordingly I am of opinion that the non-parole period should be 10 years and 6 months.

SENTENCE

98 Anthony Robert Williams you have been convicted by a jury of your peers of the manslaughter of Donna Michelle Pearce on 17 November 2001. In respect of that crime I sentence you to imprisonment for 14 years to commence on 24 December 2001 and expire on 23 December 2015. I fix your non-parole period as 10 years and 6 months to commence on 24 December 2001 and to expire on 23 June 2012, on which date you will become eligible for consideration for parole.

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Last Modified: 03/26/2004