R v Fisher[2023] QSC 48

Sentencing Remarks

The King v Traven Lee Fisher

The Hon Justice Davis

15 March 2023

[2023] QSC 48

(draft remarks to be revised against official transcript)  

Traven Lee Fisher, you were on 8 March 2023, arraigned before me on three counts on an indictment, namely:

2. Count 1that on a date unknown between the fifth day of December 2019 and the eleventh day of December 2019 at Raceview in the State of Queensland, you murdered KARDELL REBECCA LOMAS.

And the offence is a domestic violence offence.

2. Count 2that on a date unknown between the fifth day of December 2019 and the eleventh day of December 2019 at Raceview in the State of Queensland, you unlawfully assaulted KARDELL REBECCA LOMAS, who was pregnant with a child, and destroyed the life of the child before its birth.

And the offence is a domestic violence offence.

2. Count 3that on a date unknown between the fifth day of December 2019 and the eleventh day of December 2019 at Raceview in the State of Queensland, you without lawful justification or excuse, improperly interfered with a dead human body.

When arraigned on count 1 on the indictment, you pleaded that you were not guilty of murder but guilty of manslaughter.  The Crown accepted that plea and upon administration of the allocutus you were then convicted of manslaughter.  In addition, you pleaded guilty to each of counts 2 and 3 and were convicted of those offences. 

Your trial on all three counts on the indictment was due to commence before me with a jury on 7 March 2023.  In the week commencing 27 February, you indicated to the Crown a preparedness to plead guilty to manslaughter in discharge of count 1 and to plead guilty to each of counts 2 and 3 on the indictment.  That proposal was accepted, the trial was delisted, the sentence was listed for 8 March 2023 and, as already observed, you entered pleas on that day.  After hearing submissions, judgment was reserved.

I have turned my mind to s 13 of the Penalties and Sentences Act 1992.  Your pleas of guilty do not, in my view, show true and genuine remorse for your offending.  As I will later explain, after you killed Ms Lomas you told lies to distance yourself from the offending and you hid her body in the boot of a car.  That last act constitutes count 3. 

No offer to accept criminal liability for Ms Lomas’s death was made until the week commencing 27 February 2023, over three years after her death.  I have taken into account that you are of borderline to low intelligence and that it may have been difficult for you to come to grips with, and manage, the predicament in which you found yourself, charged with murder.  However, I draw the inference that your pleas were primarily motivated by self-preservation in order to avoid a conviction for murder and the mandatory sentence of life imprisonment which that brings rather than out of remorse for your offending. 

I have taken the guilty pleas into account and given you credit for cooperating with the administration of justice.  Your pleas saved the expense and trauma associated with any criminal trial.  It is also significant that on autopsy, Dr Ong observed in his conclusions:

2. “4.A definite cause of death could not be ascertained. Death could be related to pressure applied to neck, head injuries or uterine injury/rupture. The brain was too decomposed for any proper assessment. Severe injuries could occur and [be] obscured by the decomposition process.

2. 5.Other possible causes of death (e.g. natural disease or from methylamphetamine could not be completely ruled out) but could not explain the bony fractures or atypical location of the deceased.”

The admission through your plea of guilty to killing Ms Lomas did, in my view, constitute a surrender by you of some meaningful prospect of acquittal.  Given the autopsy report, conviction for manslaughter was by no means a certainty at trial.  The concession is a matter to your credit.

You and Ms Lomas had been in a domestic relationship for over 12 months.  You lived together at a house at McGill Street, Raceview with your brother, Clinton.  He has described seeing the two of you arguing but did not witness any episodes of physical violence.

Your older brother, Alfred Sullivan, did not live with you, but he visited the McGill Street house regularly.  He also saw you and Ms Lomas arguing but, like Clinton, he did not witness any physical violence between you.

Despite this, there was a history of domestic violence between you and Ms Lomas.  She had sought refuge from time to time with various of her associates complaining of violence by you.  On at least two occasions before her death, people saw injuries to her lip.  She asserted that you had inflicted those injuries.  Neighbours reported arguments between you and Ms Lomas and that you were, from time to time, verbally abusive towards her.  While the neighbours did not see any physical assault by you upon Ms Lomas or, for that matter, by Ms Lomas upon you, they reported hearing sounds consistent with physical altercations within the house.

Arguments between you and Ms Lomas came to the attention of police on three occasions.  Twice police attended the McGill Street house and noted injuries to Ms Lomas, although she made no complaint against you.  On another occasion, members of the public reported to police that you were acting aggressively towards Ms Lomas in public. 

Ms Lomas was found deceased in the boot of an abandoned car at the McGill Street house.  She had been dead for some time and decomposition had commenced.  At the time of her death, she was seven months pregnant with your child.  Her death caused the death of the unborn child. 

As the passage from Dr Ong’s report, to which I have already referred, shows, because of the state of decomposition of Ms Lomas, it was difficult to determine the cause and mechanism of her death.

During the course of the hearing of the sentencing submissions, I described the submissions made by the Crown as to what could be determined as the circumstances of the killing as conservative.  The Crown bears the onus of proving on the balance of probabilities any facts relevant to sentencing.  Speculation is both pointless and improper.  There is some objective evidence and the correct approach is to consider what inferences can properly be drawn from that evidence.  That is the approach that Mr Fuller KC, who appeared for the Crown, properly invited.

Ms Lomas’s body bore a number of injuries.  Some of these may have been inflicted post-mortem and can be ignored.  There are three injuries which are significant in my view:

2. 1.a fracture to the bridge of her nose;

2. 2.three vertical fractures through the left zygomatic arch;

2. 3.a fracture of the left hyoid structures.

The fractures to the bridge of the nose and the left zygomatic arch occurred close to the time of death.  Expert evidence, which I accept, suggests that both injuries could not have been inflicted with a single application of force, although either or both may have been caused by a fall rather than a direct blow. 

Where an injury occurs before death there is usually haemorrhaging into surrounding tissues.  Where the injury is inflicted post-mortem that feature is absent.  Here, there was no haemorrhaging evident around these injuries, but Dr Ong opined that was likely due to disintegration of surrounding tissue from post-mortem change. 

The expert evidence was that the fracture to the left hyoid structures could be the cause of death through choking.  Through your barrister, you accepted that I should draw the inference that choking was the cause of death.  I draw that inference.  You, as you now admit by your plea, were the person who choked her. 

The absence of damage to the right-sided hyoid structures leads to the conclusion that you applied the force to Ms Lomas’s neck in a choke hold which applied pressure to the left of her neck rather than in a two-handed strangling or choking motion which would have resulted in injuries to the right side of Ms Lomas’s neck as well as the left.  The force was moderate. 

I draw the inference on the balance of probabilities that the three fractures occurred before death.  There was clearly a violent altercation between you and Ms Lomas.  That involved you applying force to Ms Lomas’s head region, namely the choking.  It is more probable than not that the facial injuries occurred at that time.  I draw the inference that the three fractures occurred during the altercation with you, but I make no findings as to whether they resulted from a direct application of force by you. 

There is no direct evidence as to when you killed Ms Lomas.  However, there is evidence from which it can be inferred that you killed her on the afternoon of Sunday, 8 December 2019.

You and Ms Lomas attended the Ipswich Hospital on the afternoon of Friday, 6 December 2019 for an antenatal appointment.  Later that afternoon, you were seen together at some nearby shops.  About lunch time on Saturday, 7 December 2019, Alfred Sullivan visited the McGill Street house and you and Ms Lomas had a conversation with him.

On Sunday, 8 December 2019, at around 12.45 pm, a neighbour heard an altercation at the McGill Street house.  The neighbour heard a male say, “get up you dog, get up”.  There is no suggestion of any male being at the house at that time other than you.  Shortly after, at 3.23 pm, you contacted a friend of yours, Duncan Watcho, telling him that you needed him.  You went to the house of another associate, James Madden, to secure a ute and a big tin box.  You also sent text messages to Mr Madden seeking money for petrol.

Mr Watcho went to the McGill Street house in the early hours of Monday morning and you said to him “It’s Kardell, she’s inside, she’s OD’d, she has taken heaps of pills”.  Mr Watcho suggested that an ambulance be called and you told him that it was too late for that.  I infer that she was then dead and you knew she was dead.

I infer that on Sunday, 8 December 2019, after midday, you had a violent argument with Ms Lomas.  In the course of that argument, she has sustained the three fractures and you have choked her, not with a two-handed application of force to her throat, but more likely a choke hold where moderate pressure has been applied only to the left side of her neck. 

I draw the inference that you intended to remove her body from the house.  All the vehicles to which you had access were inoperative.  One was operational but for the fact that it had a flat battery and no petrol.  That explains why you were attempting to obtain petrol and, no doubt as an alternative, another vehicle.  I draw the inference that you intended to place Ms Lomas in a large tin box and dump her. 

The Crown submits that I should infer that you were planning to flee.  The evidence is ambiguous about that.  You were attempting to secure a vehicle and that would have enabled you to flee.  However, you were also making up stories to explain Ms Lomas’s absence.  That suggests that you were planning to stay and needed a story if challenged about Ms Lomas’s absence.  I do not draw the inference that you were planning to flee.

Examination showed your DNA on Ms Lomas’s body.  This is not surprising.  You were living with her.  No DNA from any other person was located. I draw the inference that you acted alone in not only killing her but placing her in the boot of the car.

After the death, you sent messages to relatives asking if they had seen Ms Lomas and you engaged in a pretence where you sent a message to her telephone asking why she had left.  You suggested to Mr Watcho that someone may have murdered Ms Lomas in the course of a contract killing.  All these actions were designed by you to distance yourself from the truth, namely that you had killed Ms Lomas. 

You were arrested on 10 December 2019 but were released on 12 December 2019 and then arrested again on 12 December 2019.  You told police that you went to sleep and woke to find that Ms Lomas was missing.  You had previously told Alfred Sullivan that Ms Lomas had run off.

Research by both counsel has failed to reveal any case where a sentence has been imposed for an offence like count 2, killing an unborn child, being an offence against s 313(2) of the Code.  As Mullins J (as the President then was) observed in R v Goodwin; Ex parte Attorney-General (Qld) (2014) 247 A Crim R 582, the absence of comparatives makes sentencing more difficult but the application of relevant sentencing principles will result in a just sentence according to law.

It is therefore necessary to analyse s 313(2) of the Code and, given submissions made by your counsel, also s 300 which creates the offence of manslaughter.

An unlawful killing is manslaughter unless one of the elements prescribed by s 302 is present to elevate the offence to murder.  Therefore, to secure a conviction for manslaughter, the Crown must prove:

2. 1.a person died;

2. 2.the accused caused the death of the person;

2. 3.he did so unlawfully.

The maximum penalty for manslaughter is life imprisonment.

Section 313(2) provides, relevantly:

“313 Killing unborn child

3. (1)
   …

3. (2)
   Any person who unlawfully assaults a female pregnant with a child and destroys the life of, or does grievous bodily harm to, or transmits a serious disease to, the child before its birth, commits a crime. …”

The elements of an offence under s 313(2) are:

2. 1.an unborn child is destroyed;

2. 2.the accused caused the destruction of the unborn child by an assault upon the mother;

2. 3.he did so unlawfully.

The maximum penalty for killing an unborn child is, like for manslaughter, life imprisonment.

The practical distinctions between the offence of manslaughter and that of killing an unborn child is that under s 313(2) the causative act is limited to an assault and the event is the destruction of an unborn child rather than the death of a legal person.

It has been judicially observed many times that sentences for offences for manslaughter vary widely because of the varying circumstances in which the offence can be committed.  The same can be said of an offence of killing an unborn child.

The essence of counts 1 and 2 and how they relate to each other can be described as follows:

You are guilty of the manslaughter of Ms Lomas as you did an act which unlawfully killed her.  The act which killed was choking her.  No specific intention to cause any specific result by that act is either alleged or admitted.

You are guilty of destroying the life of Ms Lomas’s unborn child by unlawfully assaulting Ms Lomas thereby killing her, and in turn causing the destruction of the life of her unborn child.  The assault which destroyed the life of Ms Lomas’s unborn child is the choking of Ms Lomas whereby you unlawfully killed her.  The direct cause of destruction of the child is the death of the mother, Ms Lomas. 

There is therefore one act, namely choking Ms Lomas, which caused both the death of Ms Lomas and the destruction of her unborn child.  The criminality which attaches jointly to counts 1 and 2 can then be described as the doing of one act but with two consequences, namely the death of Ms Lomas and the destruction of the life of her unborn child.

It was submitted on your behalf that count 2 was less serious than count 1 because count 2 by definition concerns not the death of a legal person, but the death of a baby en ventre sa mère.  That submission ought to be rejected.  Parliament has determined that manslaughter and killing an unborn child both attract the same maximum penalty, namely life imprisonment.  The offence of killing an unborn child is not, as a species of offending, less serious than manslaughter.  Whether a particular offence of killing an unborn child is more or less serious than a particular offence of manslaughter is determined by reference to all the circumstances of both offences. 

Here, count 1 is more objectively serious than count 2.  You committed a violent act upon Ms Lomas, a pregnant and therefore vulnerable woman.  You choked her and caused her death.  You did not attack her unborn child.  The child’s death was a consequence of the commission of the act which constitutes count 1.

You were born on 12 March 1983.  You have just turned 40 years of age.  You were 36 at the time of the commission of the offences.

You had a compromised upbringing.  You were the youngest of 13 children raised in Cherbourg and later Ipswich.  Alcohol abuse and violence were features of your home life.  You have complained of being sexually abused by others while a child.  There is no challenge to that assertion.  I accept that you were sexually abused as a child.

You are of borderline average intelligence and attended a special education school.  You have limited education and are functionally illiterate.  You have never had steady employment.

You have a criminal history which has numerous entries commencing in November 1999.  There are two entries which are of significance today.  The first concerns convictions on 13 October 2004 in the District Court in Ipswich. 

On that day you pleaded guilty to offences arising from four separate episodes, three of which occurred in early 2003 and one which occurred in September 2003.  The offences which occurred in early 2003 were rape, assault occasioning bodily harm and common assault.  These offences were all committed on children.  On 8 February 2003, you committed an unlawful and indecent assault upon a young woman at a nightclub.

The offence of rape, which was a different episode to the assaults, was committed upon a two year old girl who was the daughter of your then de facto partner.  The rape involved digital penetration which must have occurred with some force as the child suffered a complete tear to the posterior fourchette extending towards her anus.

The offences of assault occasioning bodily harm and common assault (the second episode) were committed upon your then partner’s other children.  These assaults were evidenced by bite marks and other trauma visible on the children.  It was not alleged that those assaults had any sexual connotation.

The third episode was the indecent assault at the nightclub.  The complainant was an 18 year old woman.  You approached her while she was outside the nightclub and you squeezed her right breast.

The fourth episode was a robbery which occurred in September 2003 and was a random attack upon a 25 year old Asian girl who you attacked while she was walking across a park.  You hopped on top of her, hit her across the back of the head and then punched her.  You grabbed her phone and her bag and ran off.

For all that offending, you received an effective head sentence of four years and six months imprisonment. 

The offence of rape of the two year old girl is a “serious sexual offence” as defined under the Dangerous Prisoners (Sexual Offenders) Act 2003.  In due course, an application under the Dangerous Prisoners Act was made and White J (as her Honour then was), on 31 July 2007, ordered that you undergo examination by two psychiatrists.  By that point, another psychiatrist had already examined you.  There was evidence from three psychiatrists before Mackenzie J who, on 22 November 2007, found that you were a serious danger to the community in the absence of an order under the Dangerous Prisoners Act and you were released subject to a supervision order for a period of 10 years.

You were diagnosed as being of borderline to low average intelligence and one doctor thought you were of low intelligence.  All psychiatrists were of the opinion that you suffer from Anti-Social Personality Disorder falling short of psychopathy.  You were considered to be of high risk of reoffending if released other than on a supervision order.

You committed various breaches of the supervision order. You removed an electronic monitoring device which had been placed on your ankle. You refused visits from Corrective Services officers and were drinking alcohol. You contacted your domestic partner contrary to a direction that you not do so and on another occasion, you assaulted your former partner.  As a result of the breaches, you spent time in custody and by force of the Dangerous Prisoners Act the supervision order was extended by periods equal to the periods you spent in custody. 

An application was made for a further supervision order, but that was dismissed in 2018.  You have not been the subject of a supervision order since 24 April 2018.

In 2015, you were convicted of common assault and of contravention of a domestic violence order.  That was a domestic violence offence.  That is the second concerning entry in your criminal history.

Within a period of about 18 months from the expiry of the supervision order, you killed Ms Lomas and destroyed the life of her unborn child. 

Given your criminal history, the Crown relies upon s 9(1)(e) of the Penalties and Sentences Act.  That provides that one of the purposes for which a sentence is imposed is “to protect the Queensland community from the offender”.  It is appropriate to refer to s 9(1) in full:

“9 Sentencing guidelines

3. (1)
   The only purposes for which sentences may be imposed on an offender are—

1. (a)
   to punish the offender to an extent or in a way that is just in all the circumstances; or

2. (b)
   to provide conditions in the court’s order that the court considers will help the offender to be rehabilitated; or

3. (c)
   to deter the offender or other persons from committing the same or a similar offence; or

4. (d)
   to make it clear that the community, acting through the court, denounces the sort of conduct in which the offender was involved; or

5. (e)
   to protect the Queensland community from the offender; or

6. (f)
   a combination of 2 or more of the purposes mentioned in paragraphs (a) to (e). …”

Subsections 9(2) to 9(11) then prescribe various considerations and conditions for the application of the purposes of sentencing identified in s 9(1).

Section 9(1)(e), by referring to the necessity to protect the community from an offender, brings in considerations, not of your past conduct, but what might be anticipated to be your future conduct.  In Veen v The Queen (No 2) (1988) 164 CLR 465, the High Court explained that the necessity to protect the public from an offender is a relevant consideration on sentence, but no sentence ought to be disproportionate to the gravity of the offending.  Section 9(1)(e) has, in my view, made no change to that principle.  In that respect, see s 9(10) and (11).

I have turned my mind to the various considerations in s 9(2). I have taken those into account.  You are an offender who falls within s 9(3) and you also fall within s 9(10A) and I have taken those considerations into account. 

The fact that you spent over a decade subject to supervision under the Dangerous Prisoners Act but offended violently against Ms Lomas within a relatively short period of that order ending, leads me to conclude that your prospects of rehabilitation are low.  Those factors also lead to the conclusion that considerations of personal deterrence are important here.

I heard from three members of Ms Lomas’s family who spoke of the impact of the death of Ms Lomas and of the loss of the new family member who was shortly expected to arrive.  Mr Adair Lomas, who is Ms Lomas’s brother, spoke not only on his behalf, but also on behalf of two of his sisters, Tarita and Jade.  I also heard from Ms Raylene Spence, who is a cousin of Ms Lomas, and Ms Shirley Lomas, who is Ms Lomas’s aunt.  Shirley Lomas travelled from Sydney to attend the sentencing and to speak on behalf of the family.

It is not necessary to repeat what the three Lomas family members said.  Their statements were, in my view, measured and sensible and reflected the understandable loss and grief felt by the family as a result of the death of Ms Lomas and her unborn child from your actions.

You have mitigating circumstances, including:

2. 1.your compromised upbringing which no doubt significantly explains your personality disorder;

2. 2.your intellectual limitations which would make it more difficult to handle complicated domestic situations;

2. 3.your plea of guilty, on the bases I have explained.

The offence of manslaughter, count 1, and the offence of killing an unborn child, count 2, are serious violent offences as defined in the Penalties and Sentences Act.  The offence of interfering with a corpse is not.  By force of the Penalties and Sentences Act, any sentences that I impose on counts 1 and 2 where those sentences are 10 years or more, compel you to serve 80 per cent of the sentences before being eligible for parole.  Because I cannot reflect mitigating circumstances in setting an earlier than usual date for parole eligibility, I have reflected mitigating circumstances in the head sentence.

The offence of interfering with a corpse, which is count 3, is not a serious violent offence and looked at in isolation a parole date can be set if the sentence is three years or less, otherwise a parole eligibility date at any time during the term can be nominated.

If a global approach is taken to all the sentences on all three offences, I would have to be careful to ensure that the sentences recognise that you are not liable by statute to serve 80 per cent of the sentence notionally imposed on count 3 before being eligible for parole.

Here, it is best to structure the sentences differently.  Counts 1 and 2 are, for the reasons I have explained, inextricably bound up with each other.  There is one act by which you committed both offences, namely the choking of Ms Lomas which then led to the consequences of the death of Ms Lomas, which is count 1 and the destruction of the unborn child, which is count 2.

Count 3 involves different conduct for which significant criminality attaches, in my view.  You manifested an intention to dump Ms Lomas’s body, but that plan was thwarted by a lack of access to an operative vehicle.  You then placed her in the boot of an inoperative car and left her decomposing.

The appropriate approach is to impose a sentence on count 1 on the indictment, manslaughter, which reflects the criminality of both counts 1 and 2, destroying the unborn child.  It is then appropriate to impose a sentence on count 3 and make that cumulative upon the sentences imposed for counts 1 and 2.  In so doing, and indeed in calculating all the sentences, I have taken into account your overall criminality.  Had I been sentencing you for count 3 alone, both the head sentence and the time you are required to serve before being eligible for parole would have been longer for that count than what I intend to impose.

A number of comparative sentences were cited to me.  It is not my function to reconcile all the various comparatives nor to reconcile the comparatives to your case. 

There are limitations as to the assistance which the comparatives give.  Firstly, none concern the offence of killing an unborn child.  Secondly, some are decided before the enactment of s 9(10A) of the Penalties and Sentences Act which makes domestic violence an aggravating circumstance. 

As explained by the Court of Appeal R v O'Sullivan; Ex parte Attorney-General (Qld); R v Lee; Ex parte Attorney-General (Qld) [2019] QCA 300, the enactment of that subsection should result in sentences for offences of violence committed in a domestic setting generally rising.

A number of the comparative sentences that were referred to me during submissions either predated the enactment of s 9(10A) or did not concern killings in a domestic situation.  These cases are not irrelevant but are of limited use because of the statutory amendment.

Of some particular assistance was R v O'Malley [2019] QCA 130.  That was a case which concerned a domestic killing.  Like you, O'Malley is of Aboriginal heritage, had a compromised upbringing, is intellectually challenged and pleaded guilty to manslaughter.  The sentencing judge found that there were psychiatric issues which would have to be addressed in order to reduce risk of reoffending.  He was sentenced to 11 years imprisonment which was not disturbed on appeal.

The assault committed by O'Malley upon his domestic partner was more violent and prolonged than here, but O'Malley did not kill an unborn child, nor did he interfere with the corpse of his victim.  Your overall sentence should be significantly higher than O'Malley’s.

I have used all the comparative sentences to set a benchmark against which to evaluate the sentences I am about to impose.

The cause of death, as I have found, was choking. That occurred during an altercation between you and Ms Lomas and by that altercation the facial fractures have occurred somehow.  There is no evidence of any sustained attack by you on Ms Lomas.  As is mentioned in some of the comparatives, that is a consideration.

In relation to count 1 on the indictment, you are sentenced to a term of imprisonment of 13 years.  In relation to count 2 on the indictment, you are sentenced to a term of imprisonment of eight years.  Those sentences are to be served concurrently with each other.  In relation to count 3 on the indictment, you are sentenced to a term of imprisonment of 12 months.  That sentence is to be served cumulatively upon the sentences I have imposed for counts 1 and 2.

I declare counts 1 and 2 as serious violent offences.

I declare the periods 10 December 2019 to 14 March 2023, a total of 1,191 days, as time served on the sentences I have just imposed.

As already observed, you are required to serve 80 per cent of the sentences I have imposed on counts 1 and 2 before being eligible for parole. That calculates to 4 May 2030. Pursuant to s 160D of the Penalties and Sentences Act, I fix your parole eligibility date as 4 September 2030, meaning you will serve an extra four months as a result of the sentence on count 3 before being eligible for parole.

Convictions are recorded for all three counts.