R v Lloyd

Jason Lloyd (the offender) has pleaded guilty to a charge that on 20 October 2020, at Como in the State of New South Wales, he murdered Lynda Greenwood.

The maximum penalty for the offence of murder is life imprisonment, and a standard non-parole period of 20 years is prescribed. I should emphasise at the outset that the Crown did not submit that a life sentence was appropriate in the present case.

A sentence hearing took place on 1 July 2022, at which time the Crown tendered the following evidence: [1]

Counsel for the offender tendered the following evidence on sentence: [3]

I was also provided with written submissions by the Crown and counsel for the offender.

Mr Greenwood and Mr Higgins read their statements to the Court at the sentence hearing. Mr Greenwood spoke of the shattering impact on his life, and on the lives of his family, brought about by his daughter's death. Mr Higgins expressed similar sentiments, and made reference to the fact that following Ms Greenwood’s murder he had assumed a number of responsibilities, including having to give permission for a post-mortem examination to be conducted, as a result of which he became privy to what he described as the “gruesome details" of the circumstances in which his sister was murdered. Both Mr Higgins and his mother are plagued by thoughts of Ms Greenwood's final moments.

Whilst all of us in our respective lives have experienced, to some degree, the grief which follows the death of a person to whom we are close, only a very small percentage of us have been forced to experience such grief in circumstances such as the present. I do not pretend to be able to truly appreciate what the members of Ms Greenwood’s family have been forced to endure as a result of her death. I can only convey the sympathy of the Court, and my own personal sympathy, to each of them. I am hopeful that the conclusion of these proceedings today will assist them, even if only in a small way, to obtain some degree of closure.

It was the submission of the Crown that I should treat the statements of Mr Greenwood and Mr Higgins in the manner for which provision is made in s 30E of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act). In R v Medich (No. 43) [4] I reviewed the authorities relating to the predecessor to s 30E. I concluded [5] that they supported the general proposition that although the nature and degree of harm may vary, any case of murder is harmful to the community. In those circumstances, and bearing in mind the content of the victim impact statements which were read to the Court, I am satisfied that they should be taken into account in the manner for which s 30E(3) provides. Counsel for the offender made no submission to the contrary.

A statement of agreed facts was tendered by the Crown. It is appropriate that those agreed facts be set out in full:

There is no specific category of domestic violence murder. [7] However, as counsel for the offender accepted, the objective seriousness of the offending in the present case must be assessed having regard to the nature of the relationship which existed between the offender and Ms Greenwood, [8] although I emphasise that such factor does not aggravate the offending. [9]

In the present case, the text messages which passed between the offender and Ms Greenwood leading up to the offending provide direct insight into the nature of their relationship. It is obvious that Ms Greenwood was in fear of the offender. Her decision to install CCTV cameras [10] at her premises is an indication of the level of that fear. Her selection of bright, pink-coloured house keys which could be easily found, and which would thus assist her in ensuring, as far as she could, that she did not remain on the front door step of her premises for any longer than was necessary, in case the offender was in the vicinity waiting for her, [11] was eerily prescient.

The other particular circumstance of the relationship between Ms Greenwood and the offender which warrants comment concerns Ms Greenwood’s decision to end the relationship, and the offender’s refusal to accept that decision. In around mid-October 2020 Ms Greenwood endeavoured to make it clear that as far as she was concerned, the relationship was over. [12] Not only did the offender refuse to accept that, [13] his response was to send Ms Greenwood a barrage of messages threatening violence against her, against any other person with whom she formed a relationship, and against the police in the event that she sought their intervention. [14]

The communications which passed between the offender and Ms Greenwood reflect a relationship defined by the offender’s threatening, jealous, abusive and manipulative behaviour. Whilst his conduct in murdering Ms Greenwood could not be described as “vengeful”, the observations of Sully J in R v Rae [15] are otherwise apt:

The report of Dr Bailey following the post-mortem examination makes for chilling reading. The cause of Ms Greenwood’s death was blunt and sharp force injuries to the head and neck. As to the former, there were significant blunt force head injuries, including large lacerations of the forehead, fractures of the cranial vault and facial bones, and damage to the anterior teeth. As to the latter, a minimum of 10 stab wounds were present on the anterior neck, with would tracks extending to the musculature of the posterior neck. There were associated injuries to the trachea, oropharynx, thyroid cartilage, thyroid gland, larynx, vertebral column and the right vertebral artery. There was also a fracture of the ulna. Bruising of the right upper arm and the left forearm were considered likely to represent defence-type injuries. [16]

Any further observation about these injuries would be superfluous. Ms Greenwood’s screaming, which was sufficiently loud to wake the neighbours, and the defence-type injuries which were identified during the post-mortem examination, provide a disturbing picture of the absolute terror with which Ms Greenwood must have been gripped in the final moments of her life. Having killed her, and in a final callous act, the offender left Ms Greenwood to die on the front doorstep of her home before utilising a tap in the front of nearby premises to wash the baseball bat, in an apparent attempt to remove anything incriminating. The offender’s attack was inhumane, and was characterised by a level of brutality and ferocity which satisfies me beyond reasonable doubt that in acting as he did, he intended to kill Ms Greenwood.

There was no dispute between the parties that the offending was aggravated by the offender’s use of two separate weapons [17] . There were, however, a number of issues between the parties regarding other potentially aggravating factors.

On 27 March 2019, an Apprehended Domestic Violence Order (ADVO) was made against the offender in the Local Court. That ADVO was later varied on 27 September 2019 and was operative for a term of 2 years. [18] It prohibited the offender from, amongst other things, assaulting or threatening Ms Greenwood, approaching her, or contacting her in any way. It specifically reiterated the necessity to comply with its terms, and warned that breaching those terms was a criminal offence.

There was some issue between the parties as to whether the breach of the ADVO amounts to a breach of conditional liberty within the meaning of s 21A(j) of the Sentencing Act. Whilst there are some observations which support the conclusion that it does, [19] this is not an issue I have to decide given that it was accepted by counsel for the offender that however it might be categorised, the offender’s breach of the ADVO per se aggravated the offending. To also have regard to the fact that it was a breach of conditional liberty would be to engage in double counting. I make it clear that I have not done so.

However, the fact that the offending was aggravated in that way is a matter about which I find myself compelled to make some further observations. In doing so, it is appropriate to call to mind the nature of the legislative scheme pursuant to which ADVOs are made, which was described by Spigelman CJ in John Fairfax Publications Pty Limited v Ryde Local Court [20] in the following way:

The fact that domestic violence is a profoundly serious problem in our community has been the subject of previous judicial comment. [21] Its proliferation has led to an increased necessity for Magistrates in the Local Court to make ADVOs for the purposes of protecting people such as Ms Greenwood, who find themselves in controlling and abusive relationships and who, as a consequence, fear for their safety. However, the efficacy of an ADVO depends upon the person against whom it is made strictly complying with its terms. The present case demonstrates the catastrophic consequences that may follow when such an order is breached.

The ADVO which was in force against the offender at the time of Ms Greenwood’s murder was made by a Magistrate in the Local Court, for the specific purpose of ensuring Ms Greenwood’s safety. It was not to be regarded as some empty rhetorical flourish, pronounced by a functionary in the performance of some rote administrative procedure. The pervasion of domestic violence in our community in recent years is such that the point has been reached where one thing needs to be made clear: any person who is subject to an ADVO is not at liberty to treat it as a piece of paper, containing an insignificant and inconvenient form of words, which can be ignored when it suits them, or worse still, when they wish to set about committing some nefarious and violent act against the person for whose protection the order has been made. A person who acts in breach of an order of the kind made against the offender should expect that any such breach will be treated seriously by the Courts. In the context of the present case, the offender’s breach of the ADVO which was put in place for Ms Greenwood’s protection is to be given full weight as a circumstance of aggravation.

Whilst it is clear that the offender intended to kill Ms Greenwood when he attacked her, there was an issue between the parties as to when that intention was formed, and an associated issue as to the existence of any planning or premeditation in which the offender may have engaged.

The Crown did not submit that the offender's purchase of the baseball bat was part of any specific plan to kill Ms Greenwood. The Crown's position was that the offender had purchased it because he was intending, or at least contemplating, using it as “an instrument of violence against [Ms Greenwood] or the man or men [the offender] perceived that she was seeing”. [22] It was the Crown’s ultimate submission that the offender formed the intention to kill Ms Greenwood when he boarded the train to Como in possession of the baseball bat and the knife. [23]

Counsel for the offender submitted that it was open to conclude that the offender’s purchase of the baseball bat was for an entirely innocent purpose, and one which was completely unrelated to the offending. Counsel further submitted that there was an available inference that when the offender travelled to Ms Greenwood’s premises on the night of her murder he was not intending to kill her, but had gone there in the hope of convincing her to resume their relationship, albeit in the knowledge that there was a possibility that she had formed a relationship with another man. Counsel submitted that on the whole of the evidence, there was an available inference that the offender was in possession of the weapons to deal with any threat that any such man may have presented. All of that said, counsel for the offender accepted that at some point the offender had formed an intention to kill Ms Greenwood, but submitted that the precise time at which he had done so was not clear.

I am mindful of the fact that in resolving any issue between the parties for the purposes of sentence, aggravating circumstances must be established by the Crown beyond reasonable doubt, and mitigating circumstances must be established by the offender on the balance of probabilities. [24] It is, in my view, stretching limits of credibility to accept that the offender’s purchase of the baseball bat was for some entirely innocent purpose. However, notwithstanding that in the end result the baseball bat was one of the weapons used to murder Ms Greenwood, I am not satisfied beyond reasonable doubt that its purchase was part of a preconceived plan on the part of the offender to kill Ms Greenwood, nor am I satisfied beyond reasonable doubt that when the offender boarded the train to travel to Ms Greenwood’s premises, he had at that time formed an intention to kill her. The text messages in which the offender expressed a general intention to perpetrate violence on any man with whom Ms Greenwood may have formed a relationship [25] sustains a competing inference that the offender initially travelled to Ms Greenwood’s premises for the purpose of ascertaining whether she was in the company of another man and, if he found that she was, with the intention of violently remonstrating with that man or perhaps, as counsel for the offender submitted, dealing with any actual or threatened violence by such man. Whilst it is clear that at some stage the offender did form an intention to kill Ms Greenwood, I am not able to determine precisely when that occurred. I can only conclude that it was sometime between the point at which he boarded the train and the point at which he attacked her. It follows that I am not satisfied beyond reasonable doubt that the offender’s intention to kill Ms Greenwood was part of any long standing plan.

Some of the text messages sent by the offender to Ms Greenwood made reference to his history of consuming excessive alcohol. [26] The Crown relied on this evidence as establishing an appreciation on the part of the offender that he was particularly prone to violent outbursts after he had been drinking. In circumstances where it was an agreed fact that the offender had visited a number of hotels prior to going to Ms Greenwood’s premises on the night that he murdered her, [27] the Crown submitted that the evidence established that the offender was intoxicated, and that this was an aggravating factor. Counsel for the offender took issue with that position, and submitted that there was no evidence of what alcohol the offender may have consumed before travelling to Ms Greenwood’s premises.

There is evidence that the offender was prone to excessive drinking, and that he had some awareness that doing so had a tendency to increase his level of aggression. It is also not in dispute that in the period leading up to Ms Greenwood’s murder the offender had attended a number of hotels. Whilst these circumstances arouse considerable suspicion, there is no evidence of how much alcohol the offender may or may not have consumed before he travelled to Ms Greenwood’s premises. The evidence tendered by the Crown included a DVD depicting the offender washing the baseball bat in the front yard of premises nearby those of Ms Greenwood. [28] Although the footage is brief, there is nothing about the offender’s demeanour depicted on that footage which would suggest that he had consumed an excessive amount of alcohol. For these reasons, I am not satisfied that intoxication is an aggravating factor.

Ms Greenwood was murdered at the front door of her premises. [29] This gives rise to the question of whether the offending is aggravated by being committed in her home. [30]

In R v Lulham [31] Bathurst CJ said the following in relation to what constitutes a “home”:

In R v Yavuz (No. 6) [32] Davies J concluded that the offending was aggravated by the fact that it had occurred on the front steps of the premises at which the victim was staying at the time. His Honour said:

A similar approach was taken by Wright J in R v Le (No. 2) [33] where, having referred to the judgment of Bathurst CJ in Lulham, his Honour accepted a submission of the Crown (which was not contested) that the garage and car park area of the deceased’s unit block formed part of the same building as his residence, and was an area where he could reasonably have the same expectation of safety and security as he would have in his home. In those circumstances, his Honour found that the offending was committed in the deceased’s home.

In the present case, counsel for the offender submitted that because the offending occurred on common property, albeit immediately outside Ms Greenwood’s front door, the aggravating factor in s 21A(2)(eb) of the Sentencing Act did not apply. That said, counsel expressly accepted that the offender was waiting outside Ms Greenwood’s home when she arrived and that she had an entitlement to expect that she could approach the front door and enter her home without interference. In these circumstances, he submitted that if s 21A(2)(eb) was found to apply, “it may not have much work to do”.

The authorities cited above support a conclusion that for the purposes of s 21A(2)(eb) of the Sentencing Act, the concept of a “home” can extend beyond the physical residence. However, where an offence occurs outside, as opposed to inside, the physical residence, it remains a matter for a sentencing judge to determine whether, on ordinary sentencing principles, that aggravates the offending. [34] In my view, Ms Greenwood had a legitimate expectation that having arrived home, she would be able to walk to the front door and enter her premises safely. So much was effectively conceded by counsel for the offender. Accepting that to be the case, I am satisfied that the offending is aggravated by the fact that it was committed at Ms Greenwood’s home, although in my view the degree of aggravation is less than would have been the case if the offender had found his way inside premises and committed the offence.

Leaving aside matters in respect of which he appeared in the Children’s Court, the offender has a criminal history dating back to November 1999. He has been dealt with on several occasions for contravening ADVOs. [35] One of those occasions was on 28 October 2010 when the offender was sentenced to a term of imprisonment. The victim of his offending on that occasion was his former partner. The breach involved (inter alia) the offender abusing his former partner in the context of alleging infidelity, and sending her repeated text messages.

In 2009, the offender was given the benefit of a bond under s 9 of the Sentencing Act for offences of common assault and stalk and intimidate. Those offences were committed against a victim (at his home) who was giving evidence against the offender in criminal proceedings alleging sexual assault. The assault by the offender was accompanied by repeated threats to kill the victim.

In January 2019 the offender was sentenced to a Community Correction Order for two years in respect of an offence of assault occasioning actual bodily harm, in the context of domestic violence towards Ms Greenwood. [36] On 27 September 2019 he was sentenced to a term of imprisonment for (inter alia) contravening the ADVO which was put in place for Ms Greenwood’s protection.

It was the Crown’s submission that the offender’s criminal history for personal violence offences should be regarded as an aggravating factor under s 21A(2)(d) of the Sentencing Act, and that it should be taken into account in the manner articulated in Veen v The Queen (No. 2). [37] Counsel for the offender submitted that when viewed as a whole, the offender’s criminal history was relatively minor and exhibited a limited history of violent offending.

I am unable to accept counsel’s categorisation of the offender’s criminal history as relatively minor. In my view, that history demonstrates an attitude of disobedience and, to a degree, violence. The offender’s criminal history is to be taken into account in the manner explained by Howie J in R v Shankley [38] (by reference to the decision in Veen No. 2):

In the circumstances I have outlined, this offending sits above the mid-range of objective seriousness. The background against which it occurred, and the offending itself, call for a strong measure of specific deterrence, an equally strong measure of general deterrence, and the imposition of a sentence which will denounce the offender’s reprehensible conduct.

The report of Dr Calvin tendered in the offender's case on sentence was prepared following an assessment on 6 August 2021 for the purposes of determining whether or not the offender had a defence of mental illness available to him, or partial defence of substantial impairment by abnormality of mind. The fact that this is so does not detract, in any way, from the opinions provided by Dr Calvin. However, it should be emphasised that counsel for the offender accepted that there were limitations to be placed upon parts of the report, particularly those parts in which Dr Calvin recorded the offender’s account of the circumstances in which Ms Greenwood was murdered. In the end result, counsel relied upon the report firstly to provide some background in relation to the offender, and, secondly to establish the diagnoses which were reached. Counsel specifically eschewed reliance on the report to establish any aspect of the circumstances of the offending [39] and I have proceeded on that basis.

In terms of the offender's personal history, Dr Calvin reported as follows: [40]

Having reviewed other medical material which was made available to him which I have summarised further below, Dr Calvin diagnosed the offender as suffering from:

As to the second of those diagnoses, Dr Calvin said: [41]

Having expressed those views, Dr Calvin went on to say: [42]

Although nothing turns on it, Dr Calvin’s description of the offender’s behaviour as an aberration tends to ignore the offender’s history of violent behaviour. In any event, the offender’s disadvantaged upbringing reduces his moral culpability, albeit (as counsel for the offender accepted) only to a minimal degree.

The report of Emily Pearse confirms that the offender suffers from mild to severe sensorineural hearing impairment bilaterally, necessitating the wearing of hearing aids. The discharge report from the Prince of Wales Hospital establishes that the offender underwent arthroscopic and reconstructive surgery on his knee in April of this year. All of these matters will have some bearing upon his conditions of custody and I have taken them into account.

There is no dispute between the parties that the offender is entitled to a discount of 25% to reflect the utilitarian value of his plea of guilty. That plea is the sole evidence of any remorse. There is no evidence that the offender has ever actually expressed any remorse to anyone for his offending.

The clinical notes of Dr Simonova indicate that on 11 February 2020 the offender presented with suicidal thoughts and thoughts of hurting others. Anti-depressant medication was prescribed. Between 8 January 2019 and 11 September 2020 the offender attended 14 counselling sessions through the “Enough is Enough” organisation. An accompanying report from Theo Simos, of 25 February 2019 (was obviously tendered in Local Court proceedings) described the offender as having implemented strategies to address his psychological issues, and made reference to the fact that the offender had “presented punctually and engaged well”. An accompanying mental health plan stated that the offender’s goals included wanting to feel less anxious, managing his alcohol consumption and wanting to feel “less sad”. The offender was referred to Dr Stevans, Psychiatrist, in 2019 for what were described as “symptoms of Depression and Anxiety.” [43] Dr Stevans diagnosed the offender as suffering from alcohol dependence (in remission) and an alcohol induced mood disorder. Continuation of anti-depressant medication was prescribed.

There is no evidence that the offender suffered from any mental illness at the time of the offending. The fact that he apparently sought some treatment of his own volition is positive sign, even though such treatment was not successful. However, I take a very guarded view about the offender’s prospects of rehabilitation, and the likelihood of his reoffending. Both depend, largely if not exclusively, on the offender satisfactorily addressing his propensity for violence and the issues related to it. Whether he will do so is impossible to determine with any degree of certainty.

I have had regard to the affidavit of Ms Curnick regarding the impact of the Covid-19 pandemic upon the offender’s conditions of custody. That impact has manifested itself in (inter alia) a large number of lockdowns in which his movements within custodial facilities was restricted. There is no doubt that the pandemic has had an adverse effect on the conditions of custody experienced by all inmates in Correctional Centres in this State and I have taken those matters into account.

The offender has been in custody since 20 October 2020 and his sentence should commence from that date.

I make the following orders: