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Supreme Court 16 December 2015

R v Biljuh (No 7)

[2015] NSWSC 1917

Homicide
CRIMINAL LAW REMARKS ON SENTENCE OFFENDER FOUND GUILTY OF MURDER BY JURY INTENTION TO KILL PREMEDITATION MINIMAL CRIMINAL RECORD

Citation: R v Biljuh (No 7) [2015] NSWSC 1917
Court: Supreme Court of New South Wales
Date: 16 December 2015
Judge: Button J

Background

The offender was tried before a jury on a single count of murder arising from the death of his 70-year-old mother at her home in the Sydney suburb of Villawood on 14 February 2014. The jury returned a unanimous guilty verdict on 22 June 2015 after the trial judge rejected a defence application to leave manslaughter as an alternative for the jury's consideration.

The sentencing proceedings were adjourned on more than one occasion to allow a forensic psychiatry report to be prepared. That report was admitted into evidence before sentence was imposed on 16 December 2015.

The offence involved manual strangulation, followed by the application of duct tape across the deceased's entire head, covering her mouth and nose entirely. Button J found the offender had planned the killing the night before, packing a backpack with cable ties, a torch, and duct tape, which the Crown described at trial as a "toolkit for murder."

  • What facts could be found, consistent with the jury's verdict, to the requisite standard of proof?
  • Whether the offender intended to kill, rather than merely to cause grievous bodily harm.
  • Whether the killing was premeditated, or arose spontaneously.
  • What weight should be given to aggravating and mitigating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW)?
  • What non-parole period and head sentence were appropriate, having regard to the standard non-parole period of 20 years and the maximum of life imprisonment?

Decision

Button J found, beyond reasonable doubt, that the offender had formed an intention to kill his mother no later than the evening before the offence. The packed backpack, containing duct tape, was central to that finding. His Honour rejected as fanciful any suggestion that the intention to kill arose spontaneously on the morning of the offence, or that the offender had earlier intended only to cause grievous bodily harm.

The killing was characterised by significant premeditation and deliberation. The offender had set an alarm for 4:30 AM to travel to the deceased's home under cover of darkness, waited for his brother to leave for work, then entered the premises and killed his mother. He thereafter broke keys off in door locks to delay discovery, and sent fabricated text messages to his brother designed to cast suspicion on a fictitious creditor.

Button J placed little or no weight on the offender's credibility in relation to any disputed fact, given the number of admitted lies told throughout. His Honour noted that, at a family gathering months before the murder, the offender had threatened to "cut off" his mother's face if she did not stop seeing his children. The application of duct tape to her head was found to have symbolically fulfilled that threat and to have completely dehumanised her appearance.

On mitigating factors, Button J acknowledged the offender's minimal criminal history and the absence of evidence of mental illness. However, the absence of remorse, lack of insight, and questionable prospects of rehabilitation were weighed heavily against him. His Honour imposed a head sentence of 30 years with a non-parole period of 22 years and 6 months, noting the standard non-parole period of 20 years as an important guidepost. The offender was also informed, as required by s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), that he may remain incarcerated beyond the expiry of his sentence if he is judged to pose an unacceptable danger to the community at that time.

Orders Made

  • The offender was convicted of murder.
  • Head sentence of 30 years imprisonment, commencing 6 March 2014.
  • Non-parole period of 22 years and 6 months, commencing 6 March 2014.
  • Parole period of 7 years and 6 months, commencing 6 September 2036 and expiring 5 March 2044.
  • First eligible date for release to parole: 5 September 2036.

Key Takeaways

  • The Supreme Court confirmed that facts relied upon as aggravating on sentence must be proven beyond reasonable doubt, while mitigating facts need only be established on the balance of probabilities.
  • Premeditation and planning are significant aggravating features in a murder sentence, and Button J found those features established here to the criminal standard, rejecting the offender's account of innocent explanations for his early movements and the contents of his backpack.
  • A finding that the offender intended to kill, rather than merely cause grievous bodily harm, was supported by the nature of the act itself: the complete and meticulous covering of the deceased's mouth and nose with duct tape made death by suffocation inevitable.
  • Where an offender's credibility has been thoroughly undermined by admitted lies, a sentencing court may treat that credibility as negligible across all disputed factual matters.
  • Under s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), a sentencing judge is obliged to inform the offender that continuing detention beyond the head sentence remains possible if an unacceptable danger to the community is established at the relevant time.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A (aggravating and mitigating factors)
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C (obligation to notify offender of possible continuing detention)

Cases: No cases were cited in the portions of the judgment provided.