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Supreme Court 30 November 2018

R v Holdom

[2018] NSWSC 1677

HomicideFraud & dishonesty
CRIME SENTENCING MURDER OF WOMAN AND CHILD GUILTY PLEA NO EXPRESSION OF REMORSE OFFENDER WITH SUBSTANCE ABUSE DISORDER

Citation: R v Holdom [2018] NSWSC 1677
Court: Supreme Court of New South Wales
Date: 30 November 2018
Judge: R A Hulme J

Background

The offender pleaded guilty to the murders of a woman and her two-year-old daughter, committed in December 2008. The woman was murdered in Belanglo State Forest on 15 December 2008. The child was murdered at Narrandera on 19 December 2008, four days later.

The offender had befriended the deceased woman and her daughter while living in Alice Springs. After the woman's death, he returned to Canberra where he was caring for the child, before killing her and disposing of her body in a suitcase on the side of a highway. He traded in the woman's car, sent text messages to her family to deflect suspicion, and stole approximately $72,000 from her bank account.

The offender had a lengthy criminal history, including a prior sexual assault of a nine-year-old child, and a profoundly dysfunctional and abusive childhood. Two psychiatric reports were tendered in mitigation. The guilty pleas were entered one week before the scheduled trial date.

  • Whether the offender should be permitted to withdraw his guilty plea to the murder of the child on the morning of sentencing
  • Whether the objective seriousness of each murder warranted the imposition of a life sentence under s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the offender's background, including his abusive childhood and substance abuse disorder, reduced his moral culpability to a degree that should moderate the sentence
  • Whether the guilty pleas, entered late and without any expression of genuine remorse, warranted a discount in the sentences imposed
  • How, if at all, the standard non-parole periods for adult and child murder should inform the sentencing exercise

Decision

Withdrawal of guilty plea refused. On the morning of sentencing, the offender instructed counsel to seek an adjournment to pursue a withdrawal of his guilty plea to the child's murder. The stated basis was that the offender had not properly digested material in the brief of evidence due to being held in segregation. Hulme J refused the application. The offender had been represented by senior and experienced counsel, including a Queen's Counsel, at the time the plea was entered. He had also had two months after the sentencing hearing to reflect. The last-minute instructions, given moments before the court came on the bench, gave the court no confidence that a credible basis for withdrawal existed.

Objective gravity of both murders. Hulme J found both murders fell within the top range of objective seriousness and within the "worst case" category. The murder of the woman involved sexual assault at or around the time of death, the insertion of objects and a hand into her body, the taking of degrading photographs, and leaving her body in a forest. The child's murder involved an attempted sexual assault, suffocation, and disposal of her remains in a suitcase. Subsequent conduct, including sending deceptive text messages and stealing from the deceased's account, reflected a callous indifference to human life.

Subjective matters given limited weight. The offender's severely abusive and dysfunctional childhood was acknowledged. However, the court found it was not established how that background bore upon the commission of these murders, and it could not reduce the assessment of culpability in the circumstances. The psychiatric evidence confirmed the offender had no mental illness and, while diagnosed with a substance abuse disorder, that condition did not diminish his responsibility. The court also noted the offender expressed no genuine remorse for either murder.

Guilty plea discount. The guilty pleas were entered late, only one week before trial. They saved the community the cost and trauma of a lengthy trial, but no expression of remorse accompanied them, and the application to withdraw one plea at the last moment undermined the weight that would ordinarily be given to a guilty plea. The court found that even accounting for the pleas, the sentences to be imposed remained unchanged, because the objective seriousness of the offending was such that the interests of community protection, retribution, punishment, and deterrence could only be met by life sentences.

Orders Made

• Khandalyce Kiara Pearce is sentenced to imprisonment for life
• Both sentences are to date from 15 September 2016

Key Takeaways

  • Both murders were assessed as falling within the worst category of objective seriousness for the purposes of s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), warranting the imposition of life sentences.
  • A guilty plea may only be withdrawn in limited circumstances, such as where it was not made as a deliberate and informed choice, or does not arise from a genuine consciousness of guilt. Where an offender was represented by experienced senior counsel at the time of entering the plea and had ample time to reflect, no credible basis for withdrawal was established.
  • Where the connection between an offender's dysfunctional background and the commission of the specific offences is not established on the evidence, that background carries limited weight in mitigating the sentence.
  • Late guilty pleas, unaccompanied by any expression of genuine remorse and followed by a last-minute attempt to withdraw one of them, attract a significantly reduced sentencing discount.
  • Under s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a life sentence is available where the culpability of the offender is so extreme that the community interest in protection, retribution, punishment, and deterrence cannot be met by any lesser term.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 19A
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A(g), 21(1), 21A(3)(i), 28(4), 61(1)
- Children (Criminal Proceedings) Act 1987 (NSW) Pt 2 Div 3A

Cases
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Fardon v Attorney General (Qld) (2004) 223 CLR 575; [2004] HCA 46
- Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46
- Imbornone v R [2017] NSWCCA 144
- Judge v R [2018] NSWCCA 203
- Knight v R (2006) 164 A Crim R 126; [2006] NSWCCA 292
- Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54
- R v Garforth (Court of Criminal Appeal (NSW), 23 May 1994, unrep)
- R v Harris (2000) 50 NSWLR 409; [2000] NSWCCA 469
- R v Hillsley [2006] NSWCCA 312; 164 A Crim R 252
- R v Merritt (2004) 59 NSWLR 557; [2004] NSWCCA
- R v Miles [2002] NSWCCA 276
- R v Robinson [2002] NSWCCA 359
- R v SLD (2003) 58 NSWLR 589; [2003] NSWCCA 310
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- R v Valera [2002] NSWCCA 50
- The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14