Subject circumstances and prior offending
7 Wood CJ at CL gave consideration to the applicant's subjective circumstances. He firstly considered the prior offending which was the subject of the sentences in the District Court and the previous appeal to this Court. His Honour summarised the facts of those offences in the following terms:
"The sentencing of the Prisoner for this extraordinary saga of ongoing, and major, criminality is complicated by the circumstance that, on 26 November 2004, he was sentenced by Judge Finnane, after trial in the District Court, in relation to eight further exceedingly serious offences, which were also found to have been committed during the period mentioned.
The reasons for sentence of Judge Finnane record that those offences were committed on 17 July 2003 (that is, before all of the matters for which I am to impose sentence save for those included in the first of the four indictments set out above), when the prisoner and three younger persons went to the suburb of Newington looking for a place to burgle. They selected the unit of a family of Asian origin, which they entered after climbing up to a balcony. They wore masks and gloves and carried knives. The male householder was tied up and threatened with knives upon his return home from work at about midnight, and his wife was compelled to open a safe, from which jewellery was stolen. Additionally the offenders stole money, electrical goods and compact discs. The premises were ransacked.
His Honour found that the Prisoner was responsible for leading this venture and for giving orders to his accomplices. He was the first to have sexual intercourse without consent with the 16 year old daughter of the household. He did so at knifepoint, having threatened to poke her eyes out if she looked at him.
Although she had been a virgin he had vaginal intercourse which left her bleeding and distressed. With the Prisoner's encouragement, two of his accomplices also had forced sexual intercourse with her without her consent. Their conduct included vaginal rape, anal rape, and forced fellatio. The young girl suffered extensive tearing to her vagina and perineum which required surgery later that morning.
The offences were described by Judge Finnane as having involved a particularly brutal and planned home invasion, and together with the sexual assaults as ones in which gratuitous cruelty had been inflicted. His Honour went on to find that the Prisoner had expressed no remorse or compassion for his victims and in sentencing him took into account his finding that the Prisoner was a "cold, callous, vicious and extremely dangerous criminal", a finding which precisely reflects my own assessment of him."
8 His Honour was mindful that appeals had been lodged (and not then determined) against both the convictions and sentences but recognised that he was required to sentence on the assumption that they would not be disturbed. As it happens the appeals against conviction were dismissed. The appeals against sentence were upheld. The total effective sentence originally imposed was of forty years with a non-parole period of thirty years. Following the appeal the overall head sentence was reduced to thirty years and the overall non-parole period to twenty-two and one half years.
9 Wood CJ at CL recounted the applicant's personal circumstances in the following terms:
"His criminal history began in the Children's Court at the age of 11 years, when on 18 May 1982 he was sentenced to four years probation for offences of take and drive, offences of break enter and steal, offences of stealing, offences of malicious injury, and one offence of attempt to steal.
On 7 September 1982 he was committed to an institution in general terms for an offence of break enter and steal. On 14 June 1983 he was placed on probation for 12 months for an offence of larceny. While on probation he was committed to an institution, on 22 March 1984, for offences of malicious injury, break and enter with intent, and stealing (two offences). Those committals were however suspended upon him entering into a good behaviour bond for 12 months.
The encouragement of a recognisance seemingly had no effect upon him, because, within two months, he was charged with stealing and was then, on 10 May 1984, committed again to an institution in general terms.
On 14 February 1985 he was recommitted to an institution in general terms for stealing a motor vehicle, and illegal use of a motor vehicle. On 27 September 1985 he was committed to an institution for two years for a total of thirteen offences of stealing a motor vehicle, five offences of malicious injury, one offence of escaping lawful custody, one offence of absconding from proper custody, one offence of stealing, as well as offences of unlicensed driver, driving in a manner dangerous and negligent driving.
On 14 October 1985 he was committed to an institution for 12 months for offences of break enter and steal, and stealing, and for 15 months for offences of take and drive conveyance, unlicensed driving, and two offences of stealing motor vehicles.
Just seven days later on 21 October 1985 he was committed to an institution for an accumulation of three months for one offence of stealing a motor vehicle.
On 18 December 1985 he was again committed to an institution in general terms for a further offence of absconding and for illegal use of a conveyance, while on 20 January 1986 he was again back in the Children's Court and recommitted to an institution in general terms for two further offences of absconding and two offences of stealing.
On 28 February 1986 he was committed to an institution for 18 months for one offence of absconding lawful custody, one offence of malicious injury, two offences of stealing a motor vehicle, and three offences of unlicensed driver.
On 11 March 1986 he was committed to an institution for 2 years for three offences of stealing a motor vehicle, one offence of malicious injury, one offence of escaping lawful custody and two offences of break enter and steal. Nine days later, on 20 March 1986 he was committed to an institution for 3 years for offences of take and drive conveyance and absconding.
On 1 July 1986 he was again committed to an institution in general terms for four offences of escape lawful custody, and four offences of absconding.
On 15 July 1986 he was again committed to an institution for 3 years for illegal use of a motor vehicle, unlicensed driving and absconding.
On 21 January 1987 he was committed to an institution for 3 months for absconding from lawful custody.
On 8 July 1987 sentences committing him to an institution were suspended conditional upon him entering into a 12 months community service order for two offences of possess an implement to enter a conveyance, two offences of take and drive, one offence of malicious injury and one offence of illegal use of a conveyance.
On 17 August 1987 a control order for 18 months was imposed when he appeared on two further counts of stealing a motor vehicle.
On 25 January 1988 a control order for 2 years with a 12 months non probation order was imposed for an offence of stealing a motor vehicle, and a control order for 6 months was imposed for an offence of malicious injury.
On 15 February 1988 control orders were made for 21 days for an offence of escaping lawful custody, and of 2 years with a non probation period of 2 months for offences of stealing a motor vehicle and possession of implements.
On 6 September 1988 and on 22 September 1988 control orders of 6 months and of 1 month were imposed respectively for offences of malicious injury and attempting to escape lawful custody (two counts).
On 4 October 1988 another control order, this time for 4 months, was imposed for an offence of malicious damage. This was followed by another control order on 14 November 1988 of 3 months for yet another offence of escape lawful custody; on 21 November 1989 by a control order for 6 months for an offence of break enter and steal; and on 14 February 1990, by control orders for 12 months for offences of break enter and steal and carry a cutting implement.
This brought to an end the Prisoner's appearance in the Children's Courts of this State which had seen him sentenced by Courts at Cobham, Yasmar, Minda, Bidura, Yass, Orange, Kempsy and Tamworth.
His record, however continued unabated in Local Courts and in the District Court.
On 17 March 1989 a control order for 12 months with a non probation period of 5 months was imposed in the District Court in Parramatta for an indictable assault.
On 20 July 1989 he was sentenced to 6 months hard labour, and fined in the Local Court of Port Macquarie for driving in a manner dangerous.
On 1 September 1989 he was sentenced to imprisonment for 5 years with a non-parole period of 4 years and 6 months, in the District Court at Port Macquarie for an offence of possession of property stolen outside the State. Sentences of 3 years and 2 years were imposed for offences of stealing and possessing household implements.
On 2 April 1990 the Prisoner was sentenced in the Burwood Local Court to imprisonment for 18 months for an offence of break enter and steal, for 12 months for offences of malicious damage and illegal use of a motor vehicle, for 15 months for an offence of possessing implements, for 3 months for failure to appear, and for 12 months for stealing a motor vehicle.
On 10 May 1990 cumulative control orders were imposed in the Sydney District Court of 6 months for four offences of larceny of a motor vehicle.
On 10 July 1990 he was sentenced in the Local Court at Cessnock to a fixed term of 6 months for malicious damage. On 18 May 1993 he was given separate fixed terms each of 6 months for offences of illegal use of a conveyance, disqualified driver, drive manner dangerous, and possess implements.
On 12 February 1996 he was sentenced in the Parramatta District Court to a fixed term of 18 months for offences of break enter and steal and larceny of a motor vehicle and to concurrent terms of 12 months for possession of implements, larceny, larceny of a motor vehicle and possession of housebreaking implements. On the same date, he was also sentenced to a fixed term of 2 years for an offence of accessory after the fact to malicious wounding; to a minimum term of 2 years 6 months with an additional term of 2 years for an offence of assault with intent to rob while armed; and to a fixed term of 12 months for a further offence of possess implements. All of these sentences were set to commence on the same day, but to the extent of the overlap there was an accumulation. Additionally on the same date a concurrent fixed term of 9 months was set for an offence of escape lawful custody.
On 25 February 1998 at Fairfield Local Court the Prisoner was sentenced to a minimum term of 12 months with an additional term of 4 months for an offence of stealing a motor vehicle, and to fixed terms of 6 months each for offences of driving in a manner dangerous and possessing a prohibited drug. Upon appeal the last two convictions and sentences were confirmed but the sentence was reduced to a minimum term of 8 months with an additional term of 8 months.
On 7 August 1998 he was sentenced in the Sydney District Court to a fixed term of 3 months for attempted escape.
On 27 July 2000 the Prisoner was sentenced in the Liverpool District Court to imprisonment for 5 years with a 2 year non-parole period for an offence of robbery in company, commencing from 23 September 1999. He was sentenced to a concurrent term of 2 years, in the same Court on the same date for a further offence of robbery in company.
On 21 November 2002 in the Liverpool Local Court he was sentenced to fixed terms each of 6 months for offences of assaulting an officer in the execution of his duty, possessing implements, take and drive conveyance, custody of a knife in a public place and possession of equipment for the administration of drugs.
Finally on 8 December 2004 the Prisoner was sentenced in the Local Court for eight offences: one offence of goods in custody, two firearms offences, two offences of assault occasioning actual bodily harm, one offence of assault police, one offence of resist police, and one offence of drive conveyance without consent, to concurrent terms of imprisonment totalling 12 months arising out of the events which are later referred to in these reasons, as being the events which on the Prisoner's account preceded the sustained period of criminality that most recently brought him back into the criminal justice system.
I have omitted from this dismal record a number of offences that were dealt with by way of a fine, or by the Prisoner being sentenced to the rising of the Court, or taken into account in relation to other matters.
While most of the offences related to offences of dishonesty, particularly involving the stealing or unlawful use of motor vehicles, the overall seriousness of which risks being overstated if attention is confined to their number, the record also includes other serious matters. It also presents a picture of wilful disobedience to the law, a complete failure on the Prisoner's part to respond to any of the opportunities that have been provided for rehabilitation and for supervision, as well as an escalating pattern of criminality.
The net result has seen him in almost continuous custody, in one form or another, between the age of 11 years and his current age of 33 years."
The Evidence Tendered by the Prisoner
It is necessary to refer to the evidence which was placed before me in an attempt to understand why the Prisoner has engaged in such unremitting and escalating criminality. It came from the Prisoner, his mother and Anna Robilliard, a forensic psychologist and it shows that the Prisoner was born on 25 May 1971. He was apparently the youngest in a family comprising on his account 10 siblings. His mother, who is an indigenous Australian worked as a nurse, while his father worked as a removalist. It was reported that the family home had been stable and that his parents have a close continuing relationship. The case is not one where the Fernando considerations ( R v Fernando (1992) 76 A Crim R 58) apply.
The Prisoner claimed to Ms Robilliard that he was sexually molested by one of his step brothers for a period of two years or so, commencing when he was aged eight years. He eventually ran away from home and began to associate and identify with a delinquent peer group. It was at that stage of his criminal behaviour that detention in boys homes commenced. At one stage he was placed in foster care but ran back home as he did not care for that experience.
He was educated in the community to part way through Year 8, and thereafter continued his education, on an intermittent basis, while in custody, which regrettably included learning, from older boys, how to steal motor vehicles. He does not seem to have passed beyond Year 10, and has never held down any form of employment, although he has acquired some training and experience as a welder and labourer while in custody.
He has been involved in some short term unstable relationships which collapsed because of his imprisonment. The last relationship ran into problems because of his use of drugs and his friendship with another woman, which apparently led to a fight between her and his partner. The Prisoner became involved in this altercation, and was charged with several offences, although on his account unfairly.
It was by reason of his concern about being sent back to prison because of these charges, and his lack of confidence in the solicitor who was acting for him that, he said, led to him not appearing in court. It was also this factor, he says, that sent him seriously off the rails in 2003, and led him into an escalating use of illegal drugs and to the saga of criminality that now sees him awaiting sentence for the 19 offences which I have mentioned.
The Prisoner informed Anna Robilliard that he had sniffed glue and petrol in late childhood but gave that practice away because of an unfortunate experience while in a detention centre. In his evidence he claimed to have commenced sniffing these substances at the age of eight or nine years.
He began to smoke cannabis, although not to any great extent, preferring to smoke heroin, a practice which he says he began in late 1997 while in Lithgow Correctional Centre. Following his release from custody in mid 2003, he stopped using heroin in favour of smoking "shabu" or "ice", in the free base form of methamphetamine.
His intelligence has been assessed as falling within the average range. From Ms Robilliard's report, it appears that psychological testing has shown that he has a "highly significant score on a dimension measuring symptoms of paranoid personal disorder", as well as "significant scores on the dependent, depressive, antisocial, avoidant, schizoid and passive/aggressive scales in that order".
Ms Robilliard reported:
'The central issue for people suffering Paranoid Personality Disorder is suspiciousness and defensiveness combined with feelings of superiority. They are likely to feel bitter toward other people who have been successful and deny their own shortcomings, often blaming others as the cause. They are constantly vigilant, expecting others to criticise, deceive or injure them, and innocuous events will be perceived as insults or attempts to control and manipulate them. Responses will frequently be abrasive, touchy, hostile and irritable. The self fulfilling nature of Paranoid Disorder reinforces the patterns of behaviour. Others react to them negatively thus reinforcing their perception of the world as a dangerous and insecure place.
Paranoid disorder in combination with Schizoid and Avoidant personality attributes, results in a progressively more insular, reclusive and socially isolated disposition. Insularity is intended to protect the individual from fears that others may be able to influence or control them. In combination with Passive/Aggressive personality attributes, paranoid presentation would represent an exaggeration of the persons' fault finding, resentful and discontented characteristics.
Antisocial personality attributes are consistent with an history of criminal behaviour and substance abuse. Impulsive acting out of antisocial feelings is the hallmark and these individuals who are typically interpersonally irresponsible violating the personal rights of others in work, relationship and financial context.'
Ms Robilliard also reported:
'On the section of the test that measures current reactive mood states and behaviours, significant scores on this profile are on scales measuring Anxiety, Dysthymia, Drug Dependence and Post Traumatic Stress Disorder. The highest score, which is on the Dysthymia scale, is equivalent to reactive depression. The individual is acknowledging feelings of sadness, pessimism, hopelessness, apathy, low self-esteem and guilt, which are directly related to current life events and circumstances. A sense of futility generally pervades their thinking and they are pre-occupied with their own inadequacy and helplessness. Suicidal ideation may be present and should be monitored.'
Of concern, apart from the foregoing, is the history which the Prisoner provided to Ms Robilliard of having a sense of hopelessness, and of his idea about the future being "a blank", as well as her assessment that the current offences took place at a time when his life was in chaos and that the more chaotic he felt the greater the amount of drugs he used. She thought him likely to become fragile, and possibly self destructive after sentencing was completed. Clearly the correctional authorities will need to give careful attention to this, as he has a history of attempted suicide.
Ms Robilliard found no signs of psychiatric illness, such experience that he had had in the past of paranoid and delusional episodes having been attributable in her view to heavy drug use.
Attention was drawn by Ms Robilliard to the fact that Robert Julien in Primer of Drug Action (2001) describes ice as:
'a free base form of methamphetamine". In other words 'ice is to methamphetamine as crack is to cocaine: the free base concentrated smokable form of the parent compound. Unlike crack, methamphetamine has an extremely long half life (about 12 hours) resulting in an intense, persistent drug action.
Repeated high dosage of methamphetamines are associated with violent behaviour and paranoid psychosis...Just as prolonged cocaine use can result in psychoses resembling paranoid schizophrenia, smoking ice produces a pattern of acute, delusional and psychotic behaviour. However, unlike that of cocaine, amphetamine induced psychosis can persist for several weeks."
In a lengthy report that was tendered by the defence, Associate Professor Starmer described the effects of methamphetamine, cannabis and cocaine use.
In relation to the substance methamphetamine, of which crystallised "ice" tends to be a very pure form, he explained that it "can have an effect in increasing libido, and a speeding of mental processes to the extent that the subject becomes submerged in a flood of thought associations, so that the attention jumps rapidly and ineffectually from one thought to another, as in a manic psychosis". He also stated that high doses can result in the development of an amphetamine psychosis, which is characterised by intense emotional lability, hallucinatory phenomena and paranoid ideation in a setting of clear consciousness, and which closely resembles schizophrenia. He also indicated that the substance may lead to thought disorder, and that withdrawal can lead to amphetamine "crash", which involves a depressive phase, fatigue, and suicidal tendencies.
Otherwise he referred to the well known effects of chronic cannabis and cocaine use, in relation, for example, to impairment of memory, concentration, cerebration, and elevated mood or euphoria; which do not require any greater analysis. Professor Starmer observed, finally, that while it is entirely possible that a change in behaviour can be attributed to the use of "ice", that would require a close examination of time-relationships between its use and the change in the pattern of offending.
The Prisoner did claim in his evidence that his use of this substance escalated after the assault charges had been brought, and that the more he smoked this substance the more he committed offences. He also said that he had not considered that the further offences mattered because of the likely consequences of the assault charges. The proceeds of the robberies he said he used to purchase more drugs.
On his account the whole period was quite unreal and he cannot believe the mess in which he found himself. Otherwise there is very little material available upon which I can determine the extent of his use of "ice" or its time relationship to the offences. That it had some effect may be accepted, but it is also not to be overlooked that the Prisoner had anything but a good record before the assault charges, and there is very strong evidence that he was already committed to a life of crime.
In relation to the murder offence, he said that it had been his intention, having checked out the location and the habits of the deceased, to wait for his departure, to open the boot of his car, to grab his bag with the day's takings, and to then run. The plan went astray, on his account, when the deceased seized his arm as he tried to operate the boot release, and held onto him and yelled out.
He said that he pulled out the gun, which he had previously loaded, in an attempt to scare off the deceased, but when he continued to struggle with him, the weapon discharged inflicting the fatal wound.
He said that he had been smoking "ice" before committing the offence, and had not realised, until the following day, that the victim had died.
He indicated that he had difficulty in talking about his emotions, but said that he felt "pretty bad" about this offence and that he felt "sorry" for the victim's family, although he acknowledged that was a "feeble" word to express his feelings. He claimed to have had bad dreams about the incident, and had acknowledged his guilt to police to get it off his conscience, an observation which does not sit well with his continuing offending after this offence, or with his attempt to escape arrest on 22 August 2003.
One might have expected that, having killed in the course of a robbery, he would have refrained from any further robberies using a gun had he been truly remorseful for the murder. To the contrary he committed a large number of further robberies over the course of which he presented the same weapon at his victims. His explanation to the effect that he had pushed the earlier murder to the back of his mind does not sit comfortably with him having entertained any great concern over that offence.
In relation to the offences involving Ms EC, he asserted that he had also taken drugs before its commission, and had gone to the shopping centre where the hijack occurred, only with the intention of stealing a motor vehicle, and without any plan to have forced sexual intercourse with anyone. He acknowledged that when he had been interviewed by police, he had been prepared to admit his guilt, but had not wanted to talk about the matter because he felt ashamed and embarrassed about his conduct. He claimed to feel "bad" about the victim.
The selection of the victim's motor vehicle, with her sitting inside it was, on his account, a spur of the moment decision, although as he conceded he and his companion had been casing the area for some time looking for a suitable vehicle to steal.
When asked what he had attempted to do in the past to address his drug habit, he said that he had approached several medical practitioners for help, but had been turned away as they did not treat "junkies". He also said that he had never been offered any assistance while in custody, and that during his last release, he had tried home detoxification but that it had only lasted a few weeks, having been interrupted because of his relationship problems and the assault charges.
His mother gave evidence to the effect that he had first fallen into trouble due to the encouragement of the boyfriend of one of his sisters, who had been a car thief, and that from the age of ten or eleven until the age of seventeen he had spent most of his life in boys homes. Thereafter, until his latest release, she said he had spent most of his life in adult prisons.
She also said that his last release had been his longest period outside and confirmed that he had tried to obtain assistance from medical practitioners, without success. She had enlisted the aid of the Aboriginal Health Service, and as a result he had tried detoxification at home. She also confirmed that he had gone off the rails again as a result of his concern that his parole would be revoked by reason of the assault charges, which he had described as having been a police set up.
She said that both she and her husband had health problems which made it difficult for them to visit him in custody. She had however seen him twice since his arrest on 22 August 2003, and noticed that he had put on weight and looked "like [her] son again". She said that he phoned his family daily and had sent letters to them apologising and expressing regret for what he had done. She also noted that he has said that he now has "no future"."
10 His Honour accepted that the applicant entertained some remorse, particularly for the murder and the sexual assault of EC but not of such significance that he was deterred from re-offending in a very significant way. Wood CJ at CL also accepted that he had some limited insight into the stupidity and violence of his past behaviour.
11 In relation to the applicant's use of drugs his Honour found that he had used "ice" and may also have used cannabis, heroin and cocaine. His Honour assessed their relevance in the sentencing process in the manner which he had described in R v Henry (1999) 46 NSWLR 346.