STATE OF TASMANIA v MARK RODNEY JONES 5 JULY 2019
COMMENTS ON PASSING SENTENCE PEARCE J
Mark Rodney Jones was found guilty by a jury of the murder of Bradley Breward. It is my responsibility as the trial judge to make my own findings of fact for sentencing purposes, so long as they are not inconsistent with the jury’s verdict. I may only make findings adverse to the defendant if satisfied beyond reasonable doubt they have been proved and I may only make findings of fact in his favour if they are proved on the balance of probabilities.
The crime was committed on 1 January 2017. In early December 2016 the defendant’s Nissan Patrol was stolen from the place he had left it on display for sale by the side of the road in Prospect. The theft was of particular importance to him because the vehicle was worth more than $20,000, was uninsured, and the defendant and his family badly needed the money from the proposed sale to pay for surgery his wife required. He reported the theft to the police but over the following weeks tried to locate the vehicle himself. He came to believe from various sources that Mr Breward was the thief and set out to find him. He offered money for information about the car and Mr Breward through social media and flyers, and by word of mouth.
Just after 9am on 1 January 2017 the defendant was told by Tina Robertson that Mr Breward was at the unit in Newnham occupied by her then partner Cody Lee. The defendant went to the unit with another man, Ricky Izard. They arrived soon afterwards and entered the unit uninvited. Both men had their faces covered and wore gloves. Mr Breward was asleep on the couch. The only other person present was Mr Lee. The defendant’s intention was, through actual and threatened violence, to extract information from Mr Breward about the car. My findings about what then happened to Mr Breward accord with the admissions the defendant made to the police when he was interviewed about a month later. The defendant’s admissions are largely consistent with the evidence of Cody Lee.
After entering the unit the defendant committed a series of violent assaults of Mr Breward in the nature of an interrogation. It is likely that the violence extended over a period of 15 to 30 minutes. He punched Mr Breward and then, with Mr Izard, bound his hands and ankles with tape. He then punched him again and kicked his torso at least twice with significant force. I am satisfied that the defendant caused the fractures to Mr Breward’s ribs and nasal bones later discovered on post mortem examination. The defendant put Mr Breward on the couch with his head back, placed a cloth over his face and poured water over it. It is a process the defendant referred to as waterboarding, and had the effect of making it difficult for Mr Breward to breathe. While these assaults were committed, the defendant kept asking about the car. Prompted by Mr Breward’s continuing refusal or inability to say anything about it, the defendant kept going. He put a plastic supermarket type bag over Mr Breward’s head, covered his mouth and counted to 40 seconds before removing it. Whether or not Mr Breward lost consciousness as a result of the first application of the plastic bag cannot be established, but he was substantially affected. The defendant referred to Mr Breward as having “come to” after the bag was removed. Mr Lee described Mr Breward as choking when the bag was on his head and then, after it was removed, him trying to breath to get back air. When still no information was forthcoming, and dismissing Mr Breward’s comments to the effect that he thought was dying, the defendant put the bag over Mr Breward’s head a second time, and, once again, counted to 40. This time Mr Breward stopped choking when the bag was on his head. When it was removed he was unconscious and not breathing. He did not regain consciousness and died. I find that the second application of the plastic bag was the cause of his death. Immediately before then Mr Breward was conscious, coherent, talking and breathing. If the defendant had not held the bag over Mr Breward’s head for a second time, Mr Breward would not have died when he did. It was the act which was directly and immediately connected with his death, although the effect may well have been contributed to by the assaults which led up to it. It caused deprivation of oxygen to Mr Breward’s brain and heart and led to cardiac arrest.
After Mr Breward died, Mr Jones, with Mr Izard wrapped the body in a tarpaulin and an empty bean bag, put it in his vehicle, and spent some hours looking for a place to dispose of it around northern Tasmania. When they could not find anywhere the body was eventually dropped to the bottom of a lake at Eugenana by means of weights and an inflatable raft Mr Jones took some trouble to obtain for that purpose. They then went to George Town to burn evidence, including clothing and the deflated raft. The body was not discovered until more than a month later and, by then, was badly decomposed.
Leaving aside the issue of causation, the issue at trial was the defendant’s intention and knowledge when he killed Mr Breward. He claimed that he did not intend to kill or injure him, only to scare him into giving information. He was found guilty of murder. It follows from the verdict that the jury must have been satisfied beyond reasonable doubt of proof of one of the limbs of s 157(1) of the Criminal Code, either that the defendant intended to cause Mr Breward’s death, that he intended to cause him bodily harm which he knew to be likely to cause death in the circumstances, or that he committed an unlawful act which he knew, or ought to have known, was likely to cause death in the circumstances, even if he had no wish to cause death or bodily harm. Each of those situations involves different degrees of criminality. Generally, intentional killing involves the greatest degree of moral culpability and the other situations involve progressively lower levels of moral culpability.
What then was Mr Jones’s intention? As I have determined the cause of death, his knowledge and intent is to be determined at the time of the second application of the plastic bag. Mr Jones went to the unit intending violence to Mr Breward. In the course of his search for Mr Breward he had made comments in conversations and text messages to others about what he intended to do when he found him. He told one man that Mr Breward would die and be brought back to life many times over. He told another man that he intended to waterboard Mr Breward and torture him to get information about his ute. Even so, I am not satisfied beyond reasonable doubt that Mr Jones intended to kill or cause injury he knew to be likely to cause death. That would have defeated his aim of finding out about the car, and is inconsistent with his immediate application of CPR after Mr Breward stopped breathing. There is some evidence suggesting that Mr Jones knew that his acts were likely to cause Mr Breward’s death. I have already referred to the statements he made to others in the lead up. I accept the evidence of Mr Lee that when, at the time of the first application of the plastic bag, Mr Izard said “let him breathe”, Mr Jones responded that he “didn’t want him to breathe” and said that wanted to “put him to sleep.” Mr Jones later told the police that such was the level of his defiance that Mr Breward seemed to “have no regard for his own life.” He is a mature and apparently intelligent man. Most people would have known that death may well result from what he was doing. However I am not satisfied beyond reasonable doubt that he had an actual appreciation that death was likely. The statements he made before death are likely to have contained an element of bluster, bravado or intimidation. The statement to the police after Mr Breward died was made with knowledge of the actual consequence of his actions. By the time that Mr Jones found Mr Breward he had been searching for him for almost a month. Such was the intensity of his feeling about the car, and the obsessive nature of his search for it and Mr Breward, that when Mr Jones finally found Mr Breward, his anger and determination to find out what had happened to the car intensified. I find that when Mr Breward displayed the defiance Mr Jones described, Mr Jones lost any reasonable insight and perspective about the likely consequence of his acts. He had already beaten and water boarded Mr Breward. He had broken his nose and ribs. He did not intend to kill Mr Breward, but had he stopped to think about it, he ought to have known that by putting the plastic bag over Mr Breward’s head on the second occasion, and holding it there while he counted to 40, there was a very good chance that Mr Breward would die.
Mr Jones is now aged 43. As a child he was subjected to violence at the hands of his family. Added to that, he was the subject of sexual abuse at school by an adult male. He is to be pitied for those things but it is not suggested that they reduce his culpability for this crime or the need for general deterrence. He was educated to grade 12. He spent time in the air force reserve. He worked as a self-employed builder. He and his partner have one child aged 3 and he has a child from a previous relationship aged 12. His imprisonment will be difficult for them, but the effect on family is one of the inevitable consequences of committing serious crime and results from the crime, not the sentence. Mr Jones’ partner has been exposed to some very unpleasant conduct as a result of publicity following the verdict. That is most regrettable, but it does not impact on sentence.
Mr Jones has a prior conviction which is relevant. In 1997, when he was 22, he committed sexual crimes against a 17 year old girl, consisting of two vaginal rapes, two anal rapes and two counts of aggravated assault constituted by violent and serious strangulation by putting his hands around her throat. He was sentenced to imprisonment for five years. Mr Jones is not to be punished again for his record, but the fact that he has, once again, even after a lapse of many years, demonstrated a capacity for considerable violence to achieve his aims adds some significance to protection of the public as a sentencing factor. Mr Jones was imprisoned between 16 February 1996 and 15 March 1997 following his conviction for a previous charge of rape alleged to have been committed in 1995. That verdict was subsequently overturned by the High Court. A retrial did not take place because the Crown did not proceed with the charge. The law deems him to be innocent of that crime, his guilt not having been proved. It is thus irrelevant to sentence. Since his release from prison in 2001 his record is, apart from one minor common assault, mostly for traffic and summary drug offences. He has not been back to prison although, in 2014 he received a short period of imprisonment for importing a controlled substance and was immediately released on recognisance.
Although this was not an intentional killing, the culpability involved in a premeditated attack of this nature, after having invaded the home of another, is so grave that the mere fact that the respondent might not have intended to kill, or realised the likelihood that he may do so, does not significantly reduce the gravity of the offence. It is a serious example of the crime of murder. The acts which led up to Mr Breward’s death involved multiple acts of deliberate cruelty. The assaults were intended to cause a high level of pain, suffering and distress and must have done so. Mr Jones acted with a callous disregard for the prospect, which would have been obvious to any reasonable observer, that there was a good chance that Mr Breward would die as a result of what he was doing. His failure to call an ambulance or seek medical treatment, and the way in which he disposed of the body and destroyed evidence, demonstrates a complete absence of immediate remorse. After lying to the police when first spoken to, it is in his favour that he eventually made full admissions of what he had done, and helped identify the location of the body. However I do not accept that there has been any demonstration of genuine remorse, which is to be distinguished from self-pity or anguish at the situation he created for himself. The manner of disposal of the body substantially aggravates his crime. The defendant’s conduct added to the gross indignity to which Mr Breward was subjected, increased the emotional and psychological impact of his death, and prevented identification of the cause of his death. I have read statements from Mr Breward’s, mother, father and step-mother describing the terrible impact of his death. They are to be read with the required circumspection. Mr Breward has a son who was aged three when his father died. The child’s life will no doubt be profoundly affected by the loss of his father in ways which cannot yet be fully appreciated. However the overwhelming sentencing consideration is the Court’s duty to uphold the law, and to reinforce the sanctity with which life is regarded in our society.
Eligibility for parole should only be permitted after Mr Jones has served the minimum term of imprisonment the Court considers to be required, taking into account all of the circumstances of the offence and the goals of condemnation, prevention, punishment and deterrence. He has been in custody since his arrest on 2 February 2017.
Mark Rodney Jones, you are convicted of murder. You are sentenced to a term of imprisonment of 22 years from 2 February 2017. I order that you not be eligible for parole until you have served 13 years of that sentence.