Dean v R

Court of Criminal Appeal (NSW)|2015-09-07|Before: Ward JA, Adams J, Hulme J, Newman J, Latham J

Judgment

WARD JA: On 18 November 2011, the applicant, Roger Dean, deliberately lit two fires in the early hours of the morning at a nursing home where he was employed as a registered nurse. The nursing home was an aged care facility catering for a number of high care elderly residents. Eleven of the residents died (two being incinerated in their own beds); a further eight were seriously injured from burns and/or smoke inhalation. It was an horrific conflagration, rightly not disputed by Senior Counsel for Mr Dean, Mr Game SC, to have been catastrophic. On any view, this was a terrible tragedy and it was accepted as such by Mr Game.
Mr Dean pleaded guilty on 27 May 2013 to eleven counts of murder and eight counts of recklessly causing grievous bodily harm. On each count of murder he was sentenced to life imprisonment commencing 18 November 2011. On each count of recklessly causing grievous bodily harm he was sentenced to eight years' imprisonment, with a non-parole period of six years; those sentences commencing and expiring at different dates in relation to two groups of counts (counts 12-15 to date from 18 November 2011; counts 16-19 to date from 18 November 2015).
Mr Dean also pleaded guilty in the Local Court to two counts of larceny as a clerk, contrary to s 156 of the Crimes Act 1900 (NSW), those counts relating to the theft of drugs and the drug register from the treatment room at the nursing home. The stolen drugs were "Schedule 8 drugs" (S8 drugs). Being drugs of addiction they were required to be, and were, stored and dispensed in accordance with strict protocols. They were kept in a locked drugs cupboard in the treatment room at the nursing home. The larceny offences carried a maximum penalty of ten years' imprisonment. Mr Dean was sentenced on each of those counts to a fixed term of five years to date from 18 November 2011, expiring on 17 November 2016.
Mr Dean seeks leave to appeal from the sentences imposed on him on the counts of murder. There is no complaint as to the sentences imposed on the grievous bodily harm and larceny counts.
In his notice of application for leave to appeal dated 8 May 2015, Mr Dean raised the following two grounds of appeal: 1. The sentencing judge erred in concluding it was not possible to adequately reflect the applicant's culpability by any lesser sentence than life imprisonment. (ROS [107]) 2. The sentences imposed upon the applicant with regard to each conviction for murder are manifestly excessive.
In the course of the hearing of the application in this Court, Mr Game indicated that he would be seeking leave to amend to include an additional third ground of appeal. That proposed additional ground is that: 3. Her Honour erred in adopting a two-stage approach to sentencing.
After judgment was reserved, submissions in relation to the proposed additional ground of appeal were filed by the respective parties in accordance with directions of the Court. The Crown has adopted the position that it is a matter for the Court as to whether leave is granted to add the proposed additional ground. As it does not point to any prejudice occasioned by the late amendment, and having regard to the fact that Mr Dean is serving life sentences, leave to amend the notice of appeal should be granted.

Background

The following summary of the factual background is taken largely from the Crown case summary and the primary judge's reasons on sentence, with which Mr Dean was in substantial agreement (as is apparent from the recitation of facts in his submissions on this application).
Mr Dean is now aged 39. At the time of the offence he was 35 and had no prior convictions. He had commenced employment at the Quakers Hill Nursing Home as a registered nurse in early September 2011. At that time, he was also studying law at Macquarie University and was close to completing his degree. He had been addicted to prescription drugs for some time prior to the offences in question.
As at 18 November 2011, there were 89 residents in the nursing home. Many were high care residents. Some were immobile. Some suffered from varying stages of dementia.
The nursing home was built in an "H" shaped configuration. It was divided into two main wings (the A and B wings), each of which was again divided into two wings (the A1 and A2; and B1 and B2 wings, respectively). The external doors, including the main entrance into the nursing home, were kept closed, admission being via a keypad entry, the code for which was available to staff and some relatives. At night, the code for entry through those doors was available only to members of staff.
There were 16 CCTV cameras installed internally and externally around the nursing home. Mr Dean knew the location of those cameras and, relevantly, knew that there was no security camera inside the treatment room where the S8 drugs and the drug register were kept. The treatment room was kept locked as was the drug cupboard in which the S8 drugs were kept. During the night shift, both the keys to the treatment room and to the drug cupboard were kept by the registered nurse on duty at the relevant time.
At about 8.00pm on 16 November 2011, prior to the commencement of Mr Dean's night shift at 10.30pm, an audit of the S8 drugs was carried out by the nursing staff on duty and all drugs were then accounted for.
As the registered nurse in charge of the night shift that night, Mr Dean had possession of the keys to the drug cupboard and treatment room. During the course of that night shift, which ended at 7.00am the following morning, Mr Dean stole 237 Endone tablets and one Kapanol tablet from the treatment room, those being restricted prescription-only S8 drugs. Mr Dean locked himself in the treatment room for substantial periods of time in order to do so, removing the drugs from the "blister packs" in which they were contained and placing sticky tape around the blister packs to mask the theft.
At about 7.30pm on 17 November 2011, nursing staff conducting the daily audit of the S8 drugs discovered that medication was missing. The clinical manager, Ms Mateo, was contacted. She attended the nursing home and confirmed, after a re-audit of the S8 drugs, that there were missing drugs. The theft of the drugs was reported to the Quakers Hill Police Station at about 10.00pm that night.
Mr Dean commenced his night shift at 10.23pm that night. During the briefing on the handover of the shift, he was told of the missing drugs. He was also told that management and the police had been notified. Shortly after midnight, two police officers attended the nursing home to commence a preliminary investigation into the theft. They were met by Mr Dean, who took them to the manager's office. The police commenced their investigation of the theft but left after 17 minutes to attend to an urgent unrelated matter. After they left, Ms Mateo viewed the CCTV footage from the previous night shift and noted that Mr Dean had entered the treatment room on a number of occasions.
Ms Mateo left the nursing home at 3.43am, leaving her office locked. The audit documents and computer records relating to the theft and the complaints to the police were left inside the locked manager's office, to which Mr Dean did not have a key.
At about 4.35am, Mr Dean requested two assistant nurses in B wing, near the treatment room, to leave the floor. They declined to do so, on the basis that they had already had a break. Mr Dean then approached two other assistant nurses in A wing and insisted that they take a break. They did so, leaving Mr Dean alone on the ward.
At 4.51am, Mr Dean walked through the foyer and entered the A2 wing where there were no CCTV cameras. Shortly before 4.53am, he set fire to a bed in room 19 in that wing, using a cigarette lighter that one of the staff members had left in a common area. The room in which this fire was lit was unoccupied.
Mr Dean later told a psychiatrist (Dr Diamond) that before this fire was lit he had considered setting a linen bag alight but had decided not to do so because that would not cause enough of a distraction (see Dr Diamond's report dated 19 May 2013 p 18). However, at the sentencing hearing, Dr Diamond gave evidence that he had been informed by Senior Counsel appearing for Mr Dean at the trial (Mr Ierace SC) that Mr Dean had informed him (Mr Ierace) that he had tried to set the laundry bag alight; that it had not lit properly; that it had left a mark on the wall; and that Mr Dean had then abandoned it and had then proceeded to light the first of the two fires on the bed in the empty room. If so, then strictly speaking there were three fires lit. Nevertheless, in these reasons I will refer to the fire in room 19 in the A2 wing as the first fire, since that was the first that took hold.
The fire alarm system at the nursing home was such that within 15 seconds of thermal or smoke detectors being activated, a message would be sent via the telephone lines to a contracted security firm and to emergency services; and, simultaneously, the five fire doors would close separating the nursing home into five zones - the central foyer and the four wings. Those doors did not lock and access through them could be gained to the other areas by pushing the doors.
At 4.53am, the fire sensors detected the first fire (in room 19) and activated the fire alarm, causing the fire siren to activate within the nursing home and the automatic message to be sent telephonically to the fire brigade. Had the fire been reported directly to the fire brigade there would apparently have been more fire trucks sent in the initial response to the alarm. All the fire doors closed when the siren was activated. (The Crown points to this as showing that Mr Dean was, or must have been, aware when he left the A2 wing that the first fire was sufficiently serious to have set off the fire alarms and close the fire doors. At the sentencing hearing, the defence maintained that it showed the illogicality of Mr Dean's actions when lighting the second fire.) The fire alarm panel in the foyer was also activated.
As the fire door closed, Mr Dean walked from the A2 wing towards the A1 wing entrance. Between 4.53am and 5.02am, Mr Dean lit another fire (to which I will refer as the second fire) on the sheet of an unoccupied bed in room 3 in A1 wing using the same cigarette lighter. He did so knowing that the fire alarm had already been triggered by the first fire in the A2 wing (although he later told Dr Diamond, incorrectly, that the fire alarms went off when he walked out of the room of the second fire).
The rooms in the A1 wing each contained four beds. To Mr Dean's knowledge two of the elderly residents in room 3 in that wing, Dorothy Sterling and Dorothy Wu, were immobile and incapable of moving from their beds without assistance. The third bed was occupied by Bertha Leonard. The fourth bed was unoccupied. It belonged to Molly Douglas, who had dementia, and was not in the room when the fire was lit. According to the account given by Mr Dean to Dr Diamond, not long before lighting that second fire Mr Dean had seen Molly Douglas walking to the toilet and had at some point gone to assist her.
At 4.59am, fire brigade officers arrived at the nursing home and were directed by staff to the fire in room 19 in the A2 wing. They extinguished that fire. They were not aware at that stage of the second fire in the A1 wing.
Meanwhile, a resident in room 4 of A1 wing, Helen Perry, had woken just before 5.00am. She heard the fire alarm and walked to the door of her room. She could not see or smell smoke and returned to her bed. Mr Dean came to her and said words to the effect "Come on darling, we've got to get out, we've got to evacuate". He started to walk her from the room and up the hallway towards the front door. She looked into room 3, where the second fire lit had taken hold, and ran into the room saying "We've got to get them out, we've got to get them out". Mr Dean grabbed her and started moving from the room, saying words to the effect "Don't worry, Helen, just leave them. We've got to get out. People are on their way to get them".
At 5.02am Mr Dean came out of the A1 wing. He then moved between the A wing foyer and B wing. He assisted in the evacuation of some of the residents from the B wing. He did not tell any fire brigade officer, or anyone else, about the fire that he had lit in the A1 wing.
At 5.04am, fire brigade officers entered A1 wing but were unable to determine the seat of the fire because of the intensity of the heat and the degree of black smoke. They could hear residents calling for help.
At 5.08am, a fire brigade officer outside the front area entrance doors directed Mr Dean to move away from the entrance area. During the next ten minutes, Mr Dean remained outside the nursing home.
At 5.15am, fire brigade officers discovered the seat of the second fire in room 3 of A1 wing. By that time the fire was already partially breaching the roof of the nursing home and had been burning for at least 13 minutes.
Between 5.49am and 6.10am, Mr Dean made three attempts to enter the nursing home through the fire doors. On the last occasion he said to a fire brigade officer "I need to go inside to get the drug book, I need to get in there". He was given permission to enter the building and retrieve the drug books. He entered the building with two fire brigade officers and explained to them the location of the drug cupboard and the drug register books. He gave one of the fire brigade officers the keys to the room and initially stayed in the corridor outside the view of the CCTV cameras. When the fire brigade officers were not able to open the door they invited Mr Dean to assist. He appeared reluctant but ultimately approached and unlocked the door, entered the treatment room, and removed the two drug register books which he put in a yellow shoulder bag.
Mr Dean then left the building, saying that he needed to get Ventolin and that he lived nearby. As he was leaving the nursing home he was interviewed on film by a reporter. He appeared coherent, alert and responsive. He went home to an apartment he shared with a former partner. There, he tore up the two drug registers and placed the remains in a grey plastic shopping bag. His former partner then drove Mr Dean to a cheesecake shop operated by the former partner. Mr Dean disposed of the plastic shopping bag containing the remains of the drug registers in a dumpster bin near the cheesecake shop and returned to the nursing home.
At about noon, Mr Dean was taken by ambulance to hospital where he was noted as being "generally distressed". At about 2.00pm, Mr Dean was taken to the police station where he made a written statement in which he did not make any incriminating statements. At about 7.15pm, Mr Dean was told by police that he was regarded as a suspect.
Between 6.47pm and 8.15pm, Mr Dean made a number of calls and sent some text messages which were intercepted pursuant to a warrant. During this time, Mr Dean admitted privately to two friends, Mr and Mrs Reid, that he had lit the fires. He said nothing about being under the influence of drugs. They later gave evidence that he did not appear to them to be affected by drugs.
Shortly after 7.50pm, Mr Dean was arrested and cautioned. At 9.50pm he entered into a record of interview in which he admitted lighting the fires. The primary judge noted (at [37]) that Mr Dean gave lucid and rational responses in the two hour long police interview (that also being the conclusion that Dr Diamond had formed from his review of the electronically recorded interview). Mr Dean informed the police that he had taken an antidepressant, an antacid and a blood pressure tablet just before the interview. The police records did not disclose any evidence of withdrawal symptoms experienced by Mr Dean while in custody.
In his interview with the police, Mr Dean's explanation for lighting the fires was that he had been having quite severe nightmares, had been suffering depression for two years, had attempted suicide and believed that Satan had urged him to light the fires. Asked what medications he had taken, he said Aropax, Lovan and Seroquel. He said that he had only been taking Lovan before the night of the fires. (Mr Dean's later account to Dr Diamond and to others of what medications he had taken on the day of, and leading up to, the lighting of the fires varied significantly. As noted by Dr Diamond, the forensic pharmacologist who provided an expert certificate in the proceedings, Dr Perl, expressed the opinion that had Mr Dean in fact ingested the drugs in doses he indicated he had over 16 and 17 November 2011, she would have expected a fatal outcome (despite any tolerance he had) and, at the least, profound impairment of his cognitive and motor functions but more likely stupor or coma (see Dr Diamond's report p 40). Dr Perl was further quoted by Dr Diamond as saying that there were no significant withdrawal symptoms noted in the Justice Health records as one would expect if Mr Dean had ingested the drugs indicated to another doctor, Dr Christie, nor any withdrawal symptoms while in police custody.)
In the police interview, Mr Dean said he did not think either of the fires would burn out of control and he made no attempt to extinguish them. He described the cigarette lighter and how he came to take it from the kitchen. He agreed that he knew of the missing drugs. He denied that he had lit the fires in retaliation for dissatisfaction on the part of some staff members over his method of distributing medication. He did not admit the theft of the S8 drugs or the drug registers.
Subsequently, as noted by the primary judge (at [41]), Mr Dean admitted that his intention in lighting the fires was to create a distraction to deflect management from further enquiry into the theft of the drugs; and he maintained that he only thought to retrieve the S8 registers from the treatment room after the attendance of the fire brigade officers and that he had destroyed the registers to remove evidence of the missing drugs. Mr Dean told Dr Diamond he decided to set a bed alight because he believed a burnt bed would constitute a priority.
Following execution of a search warrant on Mr Dean's home in the afternoon of 21 November 2011, a quantity of drugs, including some of the stolen Endone tablets and the Kapanol tablet, were found in a large box in a kitchen cupboard. (Mr Dean's evidence was that he had taken some of the stolen Endone tablets the morning of the fire.)
Dr Diamond assessed Mr Dean prior to the sentencing hearing (having examined him on 3 and 17 April 2013). In his 19 May 2013 report, Dr Diamond stated his opinion that Mr Dean did not suffer from a psychiatric illness (p 41) and said there was no evidence of a thought disorder of any type (p 10). Dr Diamond considered that Mr Dean could be seen to be suffering from an adjustment disorder or substance abuse disorder. In Dr Diamond's opinion, Mr Dean has a personality disorder and that his personality disorder features (as opposed to his substance abuse) were the more likely and more significant explanation for his conduct (p 37).

Primary judgment

In her Honour's judgment on sentence (R v Dean [2013] NSWSC 1027), Latham J noted, as clearly must have been the case, that the pain and terror experienced by all of the victims must have been horrific; that for those who were unable to move independently and who faced the prospect of being burnt alive, or suffocated by smoke, a worse fate was difficult to imagine ([45]) and that those who lived no doubt had a compromised quality of life because of the effects of their injuries ([46]). Her Honour also noted the far reaching and substantial impact of the offences on the families of the victims.
Having outlined the circumstances of the offending (from [6]-[42]) and the impact of the offences on the families of the victims (from [43]-[47]), her Honour turned to an assessment of the objective gravity of the offending (commencing at [48]). Her Honour identified three factors as having an important role in that assessment: the number of victims, the offender's motive in lighting the fires and the mental element of the offences, namely recklessness ([48]). Nevertheless, her Honour also stated that: These are by no means the only objective factors. No single factor or group of factors is necessarily determinative. Many of the objective factors are inter-related. Ultimately, it is the combination of all of them that informs the extent of the offender's criminality. ([48])
Her Honour reiterated the view she had earlier expressed in Subramaniam v R [2013] NSWCCA 159 at [57] (with which Emmett JA and Simpson J, as her Honour then was, agreed), to the effect that attributes personal to the offender (in particular the offender's mental state at the time of offending) more appropriately belonged to an assessment of moral culpability and ought to be distinguished from the objective features of the offences (those being the acts and the fault element constituting the offences); though acknowledging that the scope of the expression "the nature of the offending" may not be confined to the ingredients of the offence as observed by Price J (Allsop P and Campbell J agreeing) in Williams v R [2012] NSWCCA 172 at [40] to [42] ([49]).
Her Honour said (at [51]) that the motive in this case was intimately connected with the commission of the larceny offences, the objective gravity of which arose out of Mr Dean's abuse of his position of trust in order to satisfy an addiction to prescription drugs that he could no longer afford. Her Honour said that the fact of addiction did not operate to excuse or justify the thefts and concluded that the larceny offences demonstrated objective gravity "of a significant order" ([51]).
As to the mental element in the murder offences, having referred to R v Ainsworth (1994) 76 A Crim R 127; R v Grant [2002] NSWCCA 243; (2002) 55 NSWLR 80 at [72]; R v Holton [2004] NSWCCA 214; (2004) 41 MVR 89 and Apps v R [2006] NSWCCA 290, her Honour said (at [58]): All of these authorities, with the possible exception of Grant, support the unsurprising conclusion that the offender's reckless indifference is objectively less serious than had he formed an intention to kill or inflict serious injury on the residents of the nursing home. That is one factor among many. The specific circumstances of this case require closer analysis. (my emphasis)
At [59], her Honour said that Mr Dean's recklessness for the purpose of the s 35(2) offences (of recklessly causing grievous bodily harm) required, at the relevant time, "foresight of the possibility of really serious injury", referring to Blackwell v R [2011] NSWCCA 93, and noted that this was a lower threshold than the species of recklessness required for murder.
Her Honour went on to set out a list of nine objective factors that, subject to the qualification made at [59], she considered relevant to both the murder and the recklessly cause grievous bodily harm offences, those being: (i) The offender lit two fires in different locations in the nursing home, at night when the residents were asleep. (ii) The victims of the murder offences were vulnerable, in that they ranged in age between 73 [sic; this should have been 47] and 97 years of age, and were in the high dependency wing of the nursing home. (iii) The victims of the recklessly cause grievous bodily harm offences were vulnerable, in that they ranged in age between 45 and 85 years of age and were in the high dependency wing of the nursing home. (iv) All of the victims were under the care and control of the offender as the Registered Nurse in charge of the nursing home at the time. (v) The offender lit the second fire after the fire alarm had activated and in a room that he knew to be occupied by elderly, immobile residents. (vi) The offender consciously desisted from assisting the immobile residents in room 3 of A1 wing to escape from the fire, despite the protestations of another resident. (vii) There was a degree of planning and pre-meditation, commencing after the departure of the manager (approximately 3:45am) and evidenced by the direction to the assistant nurses to leave the wards in both B wing and A wing, obtaining the cigarette lighter from the kitchen, and lighting the first fire in A2 wing where there were no CCTV cameras. (viii) The offender allowed, by his silence, the second fire to take hold over a period of approximately 15 minutes, before fire brigade officers could identify the seat of that fire. (ix) The offender consciously endangered the lives of the occupants of the nursing home in order to avoid the consequences of his theft of drugs from the treatment room. (at [60])
With respect to the last of the above nine factors, her Honour said (at [61]) that it was common ground that the genesis of the offender's decision to light the fires was evading detection for the theft of the drugs. Her Honour went on to say that "[w]hether that motive extended to an expectation or hope that the fires would destroy the evidence of the theft, contained within the treatment room, or whether it only extended to the creation of a diversion [was] a matter of some dispute".
Her Honour considered that there was much force in the Crown's submission that Mr Dean's assertion to police that he only intended to create a minor fire should be rejected. Her Honour referred to the evidence from Dr Diamond to the effect that Mr Dean had initially considered lighting a laundry bag in an unoccupied area of the nursing home but that he had rejected that course because it would not create enough of a distraction and that he then proceeded to light the fires in the respective wings. Her Honour noted that, had Mr Dean wished to create a small fire, there were at least two avenues open to him on his own admission: to light the laundry bag or to stop after the first fire was lit in A2 wing ([62]).
Her Honour also said (at [63]): The offender is not an unintelligent man. He had the benefit of the knowledge he acquired as part of the fire safety training course. He knew that his conviction for the theft of the drugs would spell the end of any career in nursing and law. He knew, by virtue of his legal training, that without evidence of the drugs audit, the theft could not be proved to the requisite standard. He must have known that a minor distraction occasioned by a minor fire would not divert the authorities from ultimately pursuing a matter as serious as the theft of drugs.
The combination of those factors persuaded her Honour beyond reasonable doubt that Mr Dean "meant to start a fire of substantial proportions that would either destroy the incriminating evidence in the treatment room (whether by fire or water damage), or create sufficient chaos to allow him to gain access to the treatment room in order to remove that evidence". Her Honour rejected Mr Dean's claim that he did not think to gain access to the treatment room until after the arrival of the fire brigade officers. Her Honour said that the fact that Mr Dean had not used an accelerant did not undermine this finding ([64]).
At [66], having noted at [65] a submission from Mr Dean's then Senior Counsel that his long-term drug use explained the "somewhat illogical account" that he intended to create a small fire to distract or divert management from investigating the theft of the drugs, and observing that this submission assumed the veracity and reliability of Mr Dean's answers in his police interview, her Honour said that: I am unable to accept that the offender has been entirely honest and reliable in his account of the offences, partly because that account offends common sense in some respects and partly because the offender's personality disorder [i.e., narcissism] predisposes the offender to act in his own interests to the exclusion of all others.
Pausing there, this accords with Dr Diamond's evidence as to Mr Dean's "long standing behaviour"; that he simply believed he could "get away with" stealing the drugs; and that he was cleverer than most people that taking expression in what "to you and I would be completely hare-brained".
Relevantly, her Honour also noted (at [67]) that Mr Dean's narcissism, its causal relationship to the offences and the impact of Mr Dean's prescription drug addiction on the quality of his decision-making were canvassed further later in her reasons (my emphasis).
At [68], her Honour said that in the "rather singular circumstances of this case" there was a degree of artificiality in an assessment of the gravity of each of the murder and s 35(2) offences and said: Where, as here, an offender simultaneously causes the death of many people and recklessly causes serious injury to several others by a discrete act, the objective gravity of each offence is informed by the objective gravity of the combination of offences: Adanguidi v R [2006] NSWCCA 404 at [32].
Her Honour then expressed the view (at [69]) that the murders and s 35(2) offences fell into the worst case category. Her Honour considered that such an assessment was warranted "notwithstanding that the murders were committed by way of reckless indifference to human life" and went on to say that: … It remains to consider the offender's subjective circumstances and his culpability for the offences in order to determine the appropriate penalty.
Under the heading "The Offender's Subjective Circumstances", her Honour summarised the evidence as to Mr Dean's personal circumstances (from [70]-[82]), concluding that Mr Dean probably attended work on the night of the offences while affected by prescription drugs but that the degree of any impairment to his decision-making processes remained an area of dispute. Her Honour then turned to the import of his addiction to prescription drugs and his personality disorder on Mr Dean's culpability.
At [87], while not cavilling with the diagnosis of poly-substance abuse disorder that applied at the time of the offending, her Honour stated that she did not accept that Mr Dean's culpability for the offences was attenuated by his ingestion of prescription or non-prescription drugs in the days and hours immediately preceding the commencement of his shift on the evening of the fires. Her Honour said that Mr Dean had clearly not ingested drugs that relevantly affected his capacity to form judgments and make calculated decisions.
As to the psychiatric evidence, her Honour noted that Dr Diamond had rejected any diagnosis of a psychiatric illness or personality disorder but had concluded that Mr Dean displayed personal characteristics consistent with a "Mixed Type Personality Disorder with narcissistic traits and histrionic traits" and that Mr Dean's decision-making was impaired by this underlying personality disorder ([89]-[91]). Her Honour expressly accepted that in that respect, there was a causal connection between the offending and Mr Dean's psychiatric condition ([91]). Her Honour went on to say that it remained to consider whether and to what extent Mr Dean's mental disorder affected the exercise of the sentencing discretion; and extracted the summary in DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [177] as to the potential impact of mental illness upon sentencing.
Her Honour noted that Dr Diamond, in his psychiatric report, had concluded that there was no evidence to substantiate a view that Mr Dean had impaired capacity to foresee the probability of death when he lit the fires. Dr Diamond had concluded that there was no impairment of capacity to think through the intention and consequences of his plan; rather that Mr Dean was preoccupied with his own predicament and there was a failure to balance his immediate needs against those of the vulnerable people he placed at risk ([95]). Dr Diamond said, in a passage quoted by her Honour: The reckless indifference to human life exhibited by the offender by lighting the fires does not, in my opinion, arise because of diminished capacity to make decisions and carry them out. It arises from his personality disorder and not from an impairment of thinking or capacity to think clearly. ([95])
Her Honour said (at [99]-[100]): In the circumstances of this case, there is nothing to support the conclusion that the offender was unable to appreciate, or to appreciate fully, the wrongfulness of his actions, or to make reasonable judgments. The relevant causal connection between the offender's personality disorder (narcissism) and the deliberate decision to light two fires and leave them unattended is the dominance of his own immediate needs over the needs of anyone else, even if they included vulnerable patients under his charge. In that sense, it may be said that the offender's capacity to control his emotions was compromised by his personality disorder and thus, his decision-making gave primacy to his own needs. However, in my view, that relatively limited impairment, particularly when considered against the scale of the offender's reckless indifference, the enormity of the harm which resulted and the objective criminality of the offender's conduct, carries limited weight in reducing the offender's culpability to any material degree. Similarly, it does not render the offender as an inappropriate vehicle for general deterrence.
At [101], her Honour addressed a submission made for Mr Dean that his culpability consisted of the foresight, at the time that he lit the fires, of the "real chance" that residents of the nursing home would die and/or receive serious injuries and that his recklessness in that regard rendered him less culpable than if he had formed an intention to kill or to inflict really serious injury. In that context her Honour expressed the view that there was no relevant distinction between the references to a foresight of the "real chance" of death and the "probability" of death or the "probable result" in Boughey v The Queen [1986] HCA 29; (1986) 161 CLR 10 at [18] and in R v Grant at [33].
Her Honour concluded (at [102]) that: For the reasons that I have already given in relation to the objective gravity of the offences, I do not accept that the offender is less culpable on that basis [i.e., on the basis put in the submissions made for Mr Dean to which reference was made at [101] - see [62] above], either alone or in combination with his personality disorder.
Her Honour then turned to the question whether, pursuant to s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) or at common law, a life sentence for the murder offences was required in the circumstances of the case and said (at [107]-[108]): Whether pursuant to s 61(1) or under the common law, a life sentence for the murder offences is required in the circumstances of this case. It is simply not possible, in my view, to adequately reflect the culpability of the offender for the deaths of eleven vulnerable people, for whose care he was responsible, by any lesser penalty. The features of the offending with respect to the murders warrant the description "heinous", "atrocious" and "greatly reprehensible": Harris at [85]. At least three of the criteria, that is the community interest in punishment, retribution, and deterrence, are present in this case. The number of deaths alone is sufficient to elevate these offences into the worst case category: R v Baker NSWCCA 20 September 1995 (unreported). That is particularly the case where a number of murders occur as part of one episode of criminality: R v Villa [2005] NSWCCA 4. The fact that these murders arise out of the offender's reckless indifference rather than an intention to kill or inflict grievous bodily harm does not detract from these principles.
Her Honour found the depth of Mr Dean's expressed remorse to others difficult to gauge, principally because of his lack of insight and gross preoccupation with his own interests, and noted that the evidence of Dr Diamond established that Mr Dean remained deceptive and self-serving in his responses to others even after being taken into custody for the offences and during the preparation of his case for trial ([109]). Though her Honour considered that Mr Dean's prospect of rehabilitation were speculative having regard to the fact that his underlying personality would not change, she was satisfied that Mr Dean was not at risk of committing serious offences in the future ([110]). It was against that background that her Honour considered the late entry of the pleas of guilty. Her Honour said (at [111]) that, putting to one side the utilitarian value of the pleas (earlier assessed at 15%), the pleas indicated a realisation on Mr Dean's part that there was "overwhelming and damning evidence of his reckless indifference whilst in a lucid and rational state, rather than any significant degree of remorse". Her Honour was not persuaded by reference to Mr Dean's subjective circumstances that the discretion to impose a lesser sentence ought be exercised ([112]).

Consideration of appeal grounds

I have outlined above in some detail the structure of her Honour's reasons, as issue has been taken in the proposed ground 3 of the grounds of appeal with the manner in which her Honour approached the sentencing task. It is convenient to address that ground first, before turning to the original grounds of appeal.

Ground 3: Error in adopting a two-stage approach to sentencing

Section 61 of the Crimes (Sentencing Procedure) Act provides, relevantly, as follows: Mandatory life sentences of certain offences. (1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence. … (3) Nothing in subsection (1) affects section 21(1).
Section 21(1) provides that: 21(1) If by any provision of an Act an offender is made liable to imprisonment for life, a court may nevertheless impose a sentence of imprisonment for a specified term.
In R v Merritt [2004] NSWCCA 19; (2004) 59 NSWLR 557 Wood CJ at CL (Tobias JA and Hidden J agreeing) noted (at [36]) the tension between the apparent mandatory requirement to impose a life sentence where a case falls within s 61(1) and the preservation by s 61(3) of the s 21(1) discretion to impose a lesser sentence. Wood CJ at CL went on to say: That tension was recognised in decisions such as Regina v Petrinovic [1999] NSWSC 1131, and also in Regina v Harris (2000) 50 NSWLR 409. It has been resolved in favour of recognising the continued existence of the discretion, notwithstanding the fact that the s 61(1) criteria are met, where the offender's subjective circumstances justify a lesser sentence than one of life imprisonment.
At [37], his Honour referred to this as a "two step process, including the discretion, which has been followed in the application of s 61", which his Honour noted had been recognised in R v Harris [2000] NSWCCA 469; (2000) 50 NSWLR 409 and in R v Miles [2002] NSWCCA 276.
In Knight v R [2006] NSWCCA 292; (2006) 164 A Crim R 126, McClellan CJ at CL (with whom Adams and Latham JJ agreed) articulated the following principles in relation to s 61(1) (at [23]): ● the maximum penalty for an offence in the case of murder, life imprisonment, is intended for cases falling within the worst category of case for which that penalty is prescribed: Ibbs v The Queen (1987) 163 CLR 447 at 451-452. ● it is not possible to prescribe a list of cases falling within the worst category - ingenuity can always conjure up a case of greater heinousness: Veen v The Queen (No 2) (1988) 164 CLR 465 at 478; R v Petroff (unreported 12 November 1991 - Hunt CJ at CL). ● a life sentence is not reserved only for those cases where the offender is likely to remain a continuing danger to society for the rest of his or her life or for cases where there is no chance of rehabilitation; the maximum may be appropriate where the level of culpability is so extreme that the community interest in retribution and punishment can only be met by a sentence of life imprisonment; R v Kalazich (1997) 94 A Crim R 41 at (50-1); R v Baker (unreported CCA 20 September 1995); R v Garforth (unreported CCA 23 May 1994). ● in many cases a two stage approach to the consideration of whether the maximum penalty should be imposed is appropriate. Firstly, consideration is given to whether the objective gravity of the offence brings it within the worst class of case and then consideration is given to whether the subjective circumstances of the offender require a lesser sentence: R v Bell (1985) 2 NSWLR 466; R v Valera [2002] NSWCCA 50. (my emphasis) ● it is the combined effect of the four indicia in s 61(1) which is critical: R v Merritt (2004) 59 NSWLR 557. ● the absence of any one or more of the indicia of retribution, punishment, community protection or deterrence may make it more difficult for a sentencing judge to reach the conclusion that a life sentence is required although will not be determinative: Merritt at 559.
In the present case, though it is now suggested that Knight was wrongly decided, her Honour's attention was expressly directed to both of the above authorities (at [77] and [82] of the written submissions on sentence for Mr Dean).
The two-stage approach that was said in Knight to be appropriate in many cases was thus one of first assessing the objective gravity of the offence to determine whether it was within the worst category of cases (for which a maximum penalty of life imprisonment is to be imposed in accordance with s 61(1)), followed by consideration (in accordance with s 21(1)) of whether a lesser sentence was required. In Knight it was said that this second stage was by reference to the subjective circumstances of the offender.
The approach adopted by her Honour accords with the practice that has been commonly adopted in sentencing for murder in this state since the introduction of s 61(1). The Crown notes, by way of example, that in SW v R [2013] NSWCCA 103, where a life sentence was imposed at first instance for one count of murder by reckless indifference, this Court was unanimous on appeal that the two-stage procedure there adopted by the sentencing judge was in accordance with authority. In the joint judgment of Hall and Davies JJ, their Honours, after quoting s 61(1), stated (at [147]): If it is considered that the case falls within that section there remains a residual discretion under s 21(1) of the Act to impose a determinate sentence where the offender's subjective circumstances justify such a course: R v Merritt at [36].
Similarly, in Barton v R [2009] NSWCCA 164, Giles JA (with whom Howie and Latham JJ agreed), took no issue with such an approach, saying at [13]: The judge carefully considered the principles material to satisfaction as to the level of culpability in the commission of the offence required by s 61(1) and their application to the circumstances of the offence. He noted that, notwithstanding the mandatory terms of s 61(1), s 21 of the Act preserves the discretion to impose a determinate sentence: R v Merritt [2004] NSWCCA 19; (2004) 59 NSWLR 557. He considered that, on the two-stage approach found in the authorities, on the objective facts the level of culpability was so extreme that it warranted the maximum penalty. But at the second stage of whether the subjective factors displaced the prima facie need for the maximum penalty, he concluded that "the highly unusual combination of matters upon which [counsel for the applicant] relied, are sufficient to justify the imposition of a sentence other than one of life imprisonment".
More recently, in El-Zeyat v R [2015] NSWCCA 196 (at [43]), Simpson J, as her Honour then was, (with whom Leeming JA and Button J agreed), having affirmed the view that her Honour had previously expressed in Ngo v R [2013] NSWCCA 142; (2013) 233 A Crim R 121 at [27]-[30] that s 61(1) is little (if at all) more than a statement of the obvious, noted that s 61(1) depends, first, upon an evaluation of "the level of culpability [of the offender] in the commission of the offence" and that, where that level of culpability is found to be "so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of [a sentence of imprisonment for life]", then the sentencing judge is obliged to impose that sentence. Her Honour there noted that even in the absence of s 61(1), a court that arrived at an evaluation of "the level of culpability" of an offender in terms of the balance of the sub-section would be obliged to impose such a sentence.
At [44], Her Honour went on to say: Section 61(1) is not the only route to a decision to impose a sentence of imprisonment for life. Indeed, s 61(1) is not a penalty prescribing provision (Ngo at [64]). The penalty for the crime of murder is prescribed by s 19A(1) of the Crimes Act 1900 (NSW). What s 61(1) does (at most) is to identify one set of circumstances in which a sentence of life imprisonment is mandated. That is not necessarily the only set of circumstances in which a sentence of life imprisonment may be imposed, although it is the only one relevant to the present proceedings. It may be accepted that sentences of imprisonment for life are reserved (as are maximum sentences prescribed in respect of other, lesser, offences) for cases in the worst category of their kind.
The essence of ground 3 in the present case is the submission first made in the course of the hearing of Mr Dean's application in this Court that Knight (and related cases that contemplated a two-stage approach to the application of s 61) was wrongly decided.
The late stage at which this issue was raised necessarily precluded any consideration of whether an expanded bench should sit to determine whether Knight (or other Court of Criminal Appeal cases that were accepting of that approach) had been wrongly decided. Furthermore, no such submission was put to the sentencing judge.
The criticism now made of her Honour's process in this regard is twofold: first that her Honour carried out the two-stage approach at all and, second, that even if the two-stage approach recognised in Knight remains permissible (after the decisions of the High Court in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 and Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120), her Honour's assessment at the first stage was made erroneously, as her Honour did not take into account all the matters relevant to that assessment.
Before turning to each of those two aspects, I note that in oral submissions Mr Game submitted that what her Honour was (incorrectly) doing at the first stage of the sentencing exercise was determining the "objective seriousness" of the offences and that "objective seriousness" was "absolutely" the same thing as "moral culpability". His submission was in effect that in assessing objective seriousness it was necessary to take into account subjective matters that went to the issue of moral culpability because those were the same thing.
In his subsequent written submissions, Mr Game contrasted "objective seriousness" (which, by reference to Muldrock was said, in the context and for the purposes of s 54B(2) of the Crimes (Sentencing Procedure) Act, to be something required to be assessed or determined wholly by reference to the nature of the offending) with the objective gravity of particular offending (the assessment of which it was submitted involved much wider considerations consistent with the approach referred to in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 and R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168).

Is a two stage approach permissible?

As noted, the principal complaint now made in this Court is that her Honour applied a two-stage process to sentencing in that she first determined that the murder offences fell into the "worst case" category and then proceeded to consider whether there were considerations that warranted the conclusion that a sentence of less than life imprisonment was appropriate. It is said such an approach involves an undue focus on considerations of retribution and general deterrence at the first stage of the process.
Mr Game submits that such an approach to sentencing has been impermissible since Markarian and has been impermissible when sentencing an offender for a standard non-parole period offence since Muldrock. Mr Game thus submits that the conclusion that "only" a sentence of life imprisonment was appropriate could not be made until all the relevant sentencing considerations were taken into account by a process of instinctive synthesis, as that process was explained in Markarian at [73].
Markarian was decided by the High Court in 2005. It involved an appeal from a decision of this Court on a Crown sentence appeal in relation to a drug offence. Relevantly, the plurality said (at [27]) that: Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.
Their Honours had earlier cautioned (at [24]) that: It is not useful to begin by asking a general question like was a "staged sentencing process" followed. That is not useful because the expression "staged sentencing process" may mean no more than that the reasoning adopted by the sentencer can be seen to have proceeded sequentially. Or it may mean only that some specific numerical or proportional allowance has been made by the sentencer in arriving at an ultimate sentence on some account such as assistance to authorities or a plea of guilty. Neither the conclusion that a sentencer has reasoned sequentially, nor the observation that a sentencer has quantified the allowance made, for example, on account of the offender's plea of guilty, or the offender's assistance to authorities, of itself, reveals error. …(my emphasis)
The plurality rejected the proposition that there could be a universal rule stated to the effect that, to the extent that legislation did not otherwise dictate, a process of instinctive synthesis was one that sentencing courts should adopt ([36]); affirmed the statement in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 534, to the effect that a "mathematical" or two-stage approach to sentencing in which there are to be increments to, or decrements from, a predetermined range of sentences, was apt to give rise to error and departed from principle ([37]); and emphasised that sentencing courts could not "add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison" ([39]).
McHugh J (at [64]) considered that the two-tier approach (which his Honour had earlier described as where a sentence was first determined by reference to the "objective circumstances" of the case and then this hypothetical sentence is increased or reduced by reference to other factors usually personal to the accused (at [51]) was inherently susceptible to error; acknowledging (at [65]) that discretionary sentencing is not capable of mathematical precision or approximation. His Honour considered that the principle of proportionality was difficult, and perhaps impossible, to reconcile with the two-tier approach to sentencing ([69]) and that instinctive synthesis was likely to lead to better sentencing outcomes ([84]).
Kirby J, concurring in the orders proposed in the plurality's reasons, nevertheless expressed discomfort with the instinctive synthesis approach and pointed to the irony that had the two-stage approach not been followed in the Court of Criminal Appeal the errors that had occasioned Mr Markarian's success in the High Court would probably not have been revealed ([98]).
In Muldrock, the appellant had pleaded guilty to a sexual offence concerning a minor. The High Court considered the operation of s 54B(2) and (3) of the Crimes (Sentencing Procedure) Act in relation to the setting of standard non-parole periods. In that context, the High Court held that the "objective seriousness" of the offence (for the purpose of determining the standard non-parole period) was to be assessed without reference to matters personal to a particular offender or class of offenders; rather, it was to be determined wholly by reference to the "nature of the offending" ([27]). The High Court went on to say (at [28]): Nothing in the amendments introduced by the Amending Act requires or permits the court to engage in a two-stage approach to the sentencing of offenders for Div 1A offences [i.e., those to which standard non-parole periods apply], commencing with an assessment of whether the offence falls within the middle range of objective seriousness by comparison with an hypothesised offence answering that description and, in the event that it does, by inquiring if there are matters justifying a longer or shorter period.
The High Court considered that s 54B(2), read with ss 54B(3) and 21A, required an approach to sentencing for Div 1A offences that was consistent with the approach to sentencing described by McHugh J in Markarian at [51] ([26]).
In the present case, her Honour did not start with the maximum penalty for murder (i.e., life imprisonment) and then add to or subtract from that figure as various aspects of the sentencing process were considered. Nor did her Honour reason from an assessment of the objective seriousness of the offence to fix a non-parole period and then extrapolate from that a head sentence.
It is clear from the transcript of the sentencing proceedings that her Honour was alive to the requirement for an instinctive synthesis in sentencing that was affirmed in Muldrock. Her Honour, having queried with Mr Ierace the extent to which motive was relevant in determining the objective gravity of the offence, raised what she referred to as the controversy whether or not questions of a compromised mental state went to an assessment of the objective gravity of the matter personal to the offender. Her Honour there said: I should tell you that in my view, if you're not talking about a state of mind that would at least amount to partial defence under the substantial impairment or provocation, anything less than that which does not [a]ffect the requisite intent required for the offence properly belongs to the subjective features. As I said, it may not make a whole lot of difference from your perspective but it does pose this question if you like: If I disregard that factor for the purposes of determining the objective gravity of the offence, of course I might get to the position where I think a life sentence is warranted, but then one has to have regard to the subjective factors in order to, the two stage process.
Her Honour indicated that she regarded this area as a rather uncertain area of authority in the Court. Mr Ierace's response, in effect, was not to argue that the two-stage process offended Muldrock but to raise what is raised by the second aspect of this third ground of appeal, namely that a drug addiction could be relevant both in an objective and subjective way. Mr Ierace, having said that the stated reason for lighting the fires went also to what Mr Dean anticipated would be the consequence of lighting the fires, said that even if substantial impairment or mental illness could not be made out as a defence it could still have a relationship with the commission of the offence. He identified that relationship as being that the drug addiction was both tied with the offence (in an attempt to cover up the theft) and contributed to the making of "abhorrently poor choices" (namely choosing to light the two fires when aware of a real chance of death).
There is force in the Crown's submission that sentencing for murder mandates a two-stage sentencing approach of the kind adopted by her Honour. Certainly, the tension recognised in the authorities as existing between s 61(1) and s 61(3) can only readily be reconciled by assuming that that there has been a determination that a life sentence is required to be imposed and then asking whether, in the circumstances, nevertheless a lesser (fixed term) sentence is appropriate. In other words, there must first be an assessment that the level of culpability is such that a life sentence is required, having regard to the four indicia specified in s 61(1), before one can sensibly apply s 21(1).
Muldrock does not, in my opinion, render impermissible such an exercise. Nor does Markarian. For the exercise contemplated by s 21(1) to arise, there must first be a situation where, by a statutory provision, an offender is made liable to imprisonment for life. Although s 61(1) is not a penalty provision per se (as has been noted by Simpson JA in the authorities referred to above) it mandates that a sentence of life imprisonment be imposed on a person convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is as there stipulated. Logically, a determination of the level of culpability for the purposes of s 61(1) must take place before consideration of whether a lesser sentence than life imprisonment should be imposed. This involves no departure from the conventional approach to instinctive synthesis sentencing where an assessment is made as to the objective seriousness or gravity of the offence, taking into account all relevant factors that inform that assessment, and then there is a consideration (having regard to subjective factors) as to what sentence is appropriate.
Her Honour did not err in adopting the two-stage approach that she did. I am not persuaded that anything in Markarian or Muldrock renders Knight plainly wrong. Pausing there, I also note that Knight did not in terms suggest that the so-called two stage approach was required to be applied in all cases; simply observing that in many cases such an approach is appropriate.

Was there error in the application of the two-stage approach?

Mr Game submits that even if the two-stage process summarised in Knight remains viable post- Markarian and Muldrock it was erroneous for her Honour not to determine the extent of Mr Dean's moral culpability when assessing the objective gravity of the offences since an offender's moral culpability is intrinsically part of an assessment of the objective gravity of the offending.
Reference is made to R v Henry where Wood CJ at CL considered (at [273]) that the fact that an offence was motivated by the need to acquire funds to support a drug habit may be taken into account as a factor relevant to the objective criminality of the offence insofar as it may throw light on matters such as the impulsivity of the offence and extent of planning; the existence or non-existence of any alternative reason that may have operated in aggravation of the offence; and the state of mind or capacity of the offender to exercise judgment such as whether the offender was in the grips of an extreme state of withdrawal of the kind that might have led to a frank disorder of thought processes or to the act being other than a wilful act.
Reference is also made to consideration of what is meant by "objective seriousness" in R v Way (that decision in other respects being overturned in Muldrock on the two stage sentencing approach). At [79], this Court said: While it may not be the case that particular attention has been given to the precise process of reasoning involved in this kind of assessment, it would appear to us to depend upon a combination of sentencing experience, which is based upon the range of instances which go to make up cases of the relevant kind that come before the courts, combined with an understanding of the facts which are necessary elements of the offence, as well as those which are concerned with its consequences, and the reasons for its commission.
Mr Game notes that (at [85]-[86]) the Court considered that included within the objective matters impacting on the seriousness of the offence were matters of motivation, mental state and mental illness or intellectual disability where those matters were causally connected to the conduct and impacted upon an offender's capacity to reason or fully to appreciate the rights and wrongs of a situation or to exercise appropriate powers of self-control.
It is submitted that an assessment of the objective gravity of Mr Dean's offending had to include consideration of the causes of the offending, including Mr Dean's motive and those characteristics of Mr Dean that were causally connected with the commission of the offence, namely his poly-substance disorder and his personality disorder. The theft of the medication the night before the fire is identified as the catalyst of the events that followed; the "callous" and "illogical" decision-making on the night of the fire being causally linked both to Mr Dean's personality disorder and to his poly-substance abuse disorder.
The Crown maintains that in any event Mr Dean's moral culpability was brought to bear such that no error has been exposed in her Honour's instinctive synthesis of all the relevant matters. In that regard, the Crown notes that her Honour accorded little weight to the impact of Mr Dean's personality disorder and drug usage and submits that those findings were clearly open to her Honour. Those matters are considered in the context of ground 1 of the grounds of appeal.
The Crown also emphasises that it was only after her Honour had considered those matters, that her Honour came, under the heading 'Worst Case and Section 61(1) Crimes (Sentencing Procedure) Act 1999" to her determination that only 11 life sentences would be appropriate. The Crown refers, in this context, to [104]-[107] of her Honour's reasons. At [104] - [105], her Honour stated: The legislature has preserved by the operation of s 21(1) of the same Act a discretion to impose a determinate sentence notwithstanding s 61(1). Such a discretion may operate where an offender's subjective circumstances justify a lesser sentence, notwithstanding that the criteria under s 61(1) are met. This approach has been described as a "two step" one, in that an assessment of the culpability of an offender is first undertaken having regard to "the circumstances surrounding or causally connected with the offence, leaving aside matters such as remorse, pleas of guilty, prospects of rehabilitation and the like." : R v Harris [2000] NSWCCA 469 ; 121 A Crim R 342 at [60]. Then and only then does a consideration of the offender's subjective case arise. However, an alternative avenue for the imposition of a life sentence is available under the common law: Harris at [79] to [87]. Whatever the legitimacy of a two step approach under s 61(1) since Muldrock v The Queen [2011] HCA 39 ; 244 CLR 120, the imposition of a life sentence for a worst case under the common law is still the product of an instinctive synthesis of all the relevant sentencing factors.
For present purposes, it is relevant to note again the caution expressed by the plurality in Markarian (at [24]) against approaching the question whether error has been revealed in the sentencing process by asking whether a "staged" process was followed.
The vice in such an approach, it seems to me, is that it assumes that a finding or conclusion at one stage of the process of reasoning is not informed by an assessment of matters that may be considered under other headings later in the reasons, even though the later passages may primarily be addressing other issues. Indeed, it is conceded by Mr Game (at [37] of his submissions) that her Honour's reasoning could not be said to have involved an (on his submission incorrect) two-stage sentencing process or otherwise to have been inappropriate had her Honour commenced with an assessment of the objective gravity (including the level of moral culpability) of the offending and then enquired into matters personal to Mr Dean, provided this did not involve a determination of an appropriate sentence until all relevant considerations had been taken into account. In other words, had her Honour concluded (at [69]) not that the offences fell into the worst case category, but rather that the offences were objectively of a very serious kind, and left the conclusion that these offences were in the worst case category to later in her Honour's reasons (say at [102]), Mr Game accepts that he would have no basis for complaint. That places too much weight in my opinion on the structure and sequence of the reasons. The reasons should be read as a whole.
The Crown submits that there is no authority for the proposition that a sentencing judge must consider moral culpability as part of a consideration of the objective gravity of the offence noting that in the passage in R v Henry quoted above, Wood CJ at CL said that the fact that an offence is motivated by a need of the kind there referred to "may" be taken into account. It is submitted that the ultimate question is whether each of the relevant matters is ultimately brought to bear in the instinctive synthesis of sentencing and that her Honour did bring those matters to bear in her reasoning process.
The two matters that Mr Game argues were not, and should have been, brought to bear in the assessment of the objective gravity of the offences of murder were the causal impact of Mr Dean's drug use and personality disorder. He notes that during the submissions on sentence between the primary judge and Mr Ierace it was submitted that the evidence established that Mr Dean's drug abuse, in conjunction with his personality disorder, had affected his ability to make sensible decisions and that this was a relevant factor to take into account on sentence in relation to his culpability for the offences.
However, it is clear from her Honour's reasons (see [67]) that her Honour had in mind before stating the conclusion that the offences fell within the worst case category (at [69]) both the issue of the causal relationship between Mr Dean's personality disorder and the offences and the impact of the drug addiction on the quality of his decision-making. Those matters were dealt with in detail later in the reasons. It may be inferred, from the reference made to this at [67] that had those matters affected the assessment by her Honour of the objective gravity of the offences, or the level of Mr Dean's culpability in the commission of the offences, to use the language in s 61(1), in a material way those matters would have been dealt with at an earlier point in her Honour's reasons but it should not be inferred that they were not brought to bear in the instinctive synthesis simply because they were dealt with later and after a conclusion had been expressed that the case fell within the worst category of offences of this kind.
Her Honour's reasons should in this sense be understood as being that, due to the limited weight her Honour placed on the contribution of Mr Dean's personality and drug addiction disorders to the objective gravity of the offending, they were left to be dealt with later in her Honour's reasons together with other matters personal to Mr Dean that were taken into account in deciding whether a lesser term was appropriate in the circumstances.
Neither aspect of ground 3 is made out in my opinion.
I turn then to the remaining two grounds of appeal.

Ground 1: Error in concluding it was not possible adequately to reflect the applicant's culpability by any lesser penalty than life imprisonment

Mr Dean makes the submission that her Honour erred in this conclusion (at [107]) by reference to four matters.
First, it is said that her Honour failed properly to consider the extent that Mr Dean foresaw the probable consequences of his actions in lighting the fires; second, that Mr Dean had not intended to occasion death or harm to any resident of the nursing home; third, the significance of his personality disorder and his substance abuse disorder to the assessment of his moral culpability; and, fourth, that her Honour failed properly to consider certain matters that provided further reasons for the conclusion that his culpability was not at a level warranting a sentence of life imprisonment.
As to the fourth of those matters, Mr Dean points to the following: his pleas of guilty and facilitation of the course of justice by, among other things, waiving committal proceedings; his prior good character; his difficult background; the strong likelihood that he will find custody more onerous than is usually the case because of the nature of the offence, his homosexuality and effeminate personality; the unlikelihood that he will re-offend by committing serious offences in the future; and that there was some evidence of remorse.
The Crown submits that each of the above matters was properly taken into account by her Honour and that the complaints now made about those matters implicitly acknowledge that some consideration or weight was given to them as part of the sentencing exercise. The Crown emphasises that in R v Baker [2000] NSWCCA 85 (at [11]) Spigelman CJ said that questions of weight in the exercise of a discretion are matters for the first instance judge and that circumstances in which matters of weight will justify intervention by an appellate court are narrowly confined.
I consider each of the four matters identified by Mr Dean in turn.

(i) Failure properly to consider the extent that Mr Dean foresaw the probable consequences of his actions in lighting fires

It is submitted for Mr Dean that her Honour was in error in concluding (at [101]) that there was no relevant distinction between foresight of a "real chance" of death and foresight of "the probability of death" or the "probable result" in terms of the test for murder by reason of reckless indifference to human life.
The Crown's submissions as to the basis of liability were to the effect that, in order to constitute reckless indifference to human life, the Crown had to prove that the accused foresaw, anticipated or realised the probability of death. In written submissions for the defence the relevant foresight was put as adverting to the "real chance" that a person would die as a consequence of the fires, in language taken from Boughey v The Queen per Mason, Wilson and Deane JJ at [18].
However, Mr Game notes that what was put to her Honour was that even within the concept of murder by reckless indifference to human life there were gradations of blameworthiness or culpability contingent upon an assessment of the offender's foresight of the likelihood that his actions could occasion death. He submits that implicit in that submission was the contention that Mr Dean's foresight of death being occasioned by his actions was at a lower level than in many other cases of murder by reason of reckless indifference to human life.
The statement by her Honour at [101], to which issue is taken by Mr Game, was made in the context that her Honour was addressing a submission by Mr Ierace as to the basis on which Mr Dean's plea of guilty should be understood. Mr Ierace had informed her Honour that this was on the basis that Mr Dean accepted that, given his experience as a registered nurse and his awareness of the state of health of the nursing home residents, he must have averted at the time he started the fires "to the real chance, possibility, that a person would die as a consequence". Mr Game notes that this submission was incorrect insofar as it suggested that adverting to a "possibility" of death would amount to recklessness for the offence of murder. However, the reference to foresight of a "possibility" of death seems to have been corrected both in later submissions and in a written note to her Honour sent with the consent of the Crown.
Mr Ierace confirmed that the plea was on the basis that Mr Dean acknowledged that there was a "real chance" of death as a result of lighting the fires and that he accepted "effectively in retrospect, having regard to his experience, knowledge and awareness, the conditions of the patients, all those factors being in his mind at the relevant time".
In the memorandum forwarded with the Crown's consent to her Honour on 19 June 2013, Mr Ierace drew her Honour's attention, in relation to the question whether for reckless indifference to murder foresight of a real chance of death could be equated with the foresight of a probability of death, to what was said in R v Grant by Woods CJ at CL (with whom Spigelman CJ and Kirby J agreed) namely (at [33]): In order for an accused to be convicted of murder by reckless indifference to human life, the Crown needs to show that he or she knew that the probable result of his or her act (or omission), in this case the act of firing the gun, was to cause the death of another, and knowing of that likelihood (which has to be a substantial or real chance as distinct from a mere possibility) he or she went ahead and did the act regardless: Crabbe v The Queen (1985) 156 CLR 464; and Royall v The Queen (1991) 172 CLR 378; Boughey v The Queen (1986) 161 CLR 10 (my emphasis).
Mr Game argues that it was wrong for the Crown to suggest that the level of foresight required was that death was more probable than not. He notes that in Crabbe v The Queen [1985] HCA 22; (1985) 156 CLR 464, the High Court held, in a case involving murder by reckless indifference, that the contrast was between "probable" and "likely" on one hand and "possible" on the other. At [15], it was held that "likely" could mean "a substantial, real (not remote) chance"; at [101], it was said there was no relevant distinction between foresight of a "real chance" of death, the "probability" of death or the "probable result" of death.
Mr Game also points to Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373, where the High Court, when considering the definition of reckless murder in the relevant provision of the Queensland Criminal Code (Gleeson CJ, Gummow, Heydon and Crennan JJ) considered that "probable" could be of differing degrees of strength. In that case it was accepted that before it the appropriate meaning was a probability of less than 50/50 but more than a substantial or real and not remote possibility. Their Honours considered that "a probable consequence" was not the same as "a real or substantial possibility or chance", observing that the expression "a probable consequence" meant that the occurrence of the consequence need not be more probable than not, but must be probable (in the sense that it could well happen) as distinct from possible ([79]).
In that regard, the complaint now made for Mr Dean is not, in essence, that her Honour considered (at [101]) that there was no relevant distinction between references to foresight of the "real chance" of death and the "probability of death" or "probable" result but seems rather to be that her Honour did not find that Mr Dean's foresight as to the probability of death was affected by his intention only to light a "small fire" and to cause a distraction. Mr Games points to her Honour's use of the indefinite article "the" as opposed to "a" when speaking of probable result at [101] and argues that her Honour was there meaning "more probable than not", which was incorrect. What her Honour was there doing was distinguishing between culpability involved in foresight of the real chance or probability of death with forming an intention to kill. In that context, the significances sought to be attributed to use of the definite article "the" before the expression "probable result" does not in my opinion do justice to the manner in which her Honour was approaching the submissions that had been made as to what was foreseen by Mr Dean.
Mr Game accepts that Mr Dean's pleas of guilty to the offences of murder involved acceptance that he must have adverted to the "real chance" that a person would die as a consequence of lighting the fires. He submits that what her Honour did was to treat this as meaning he foresaw that death would be more probable than not as a consequence.
That to my mind puts a gloss on what her Honour there said. What I read her Honour as saying is that she accepts that Mr Dean foresaw that there was a "real chance" that residents of the nursing home would die (the reference to receipt of serious injuries presumably referring to the grievous bodily harm offences) and that her Honour proceeded on the basis that this meant he foresaw the probability (rather than the mere possibility) of death. Her Honour's conclusion at [102] was his moral culpability (whether the test of reckless indifference be expressed as foresight of a "real chance" of death or of the "probability" of death), having regard to the reasons earlier given in relation to the objective gravity of the offences is no less than had he had an intention to kill. I do not read the use of the definite article (i.e., "the probable result" in the alternative way in which "probability of death" was expressed) as meaning that her Honour posed a higher test by treating Mr Dean as having foreseen that death would be the more probable than not consequence of the fires.
Mr Game also argues that insofar as her Honour concluded (at [64]) that Mr Dean meant to start "a fire of substantial proportions" that would either destroy the incriminating evidence in the treatment room or create sufficient chaos to allow him to gain access to the treatment room in order to remove that evidence, the second alternative (creation of chaos to allow him to gain access to the drug register) was manifestly less serious than creating a fire to destroy the evidence. That, however, appears to conflate motive with foresight as to the likely or probable consequences of his actions. Mr Dean may have intended only to create a fire to cause sufficient chaos to enable him to remove the drug register or evidence of theft, in the hope of evading detection. However, when he lit the fires he must have foreseen (and accepts that he did foresee) that there was a real chance that the death of one or more residents would result from his actions.
In this regard, the Crown emphasises the finding, to which there has been no challenge, that Mr Dean's intention was to start a fire "of substantial proportions"; that Mr Dean lit or attempted to light 'three' fires (reference there being to the lighting or attempted lighting of the laundry bag); that Mr Dean deliberately lit the second fire at a time when he was aware that the fire alarms had already been set off and the fire doors had closed, from which it is said it must be inferred that he knew the first fire was substantial enough to have had that result; and that he positively prevented Ms Perry from helping the elderly and immobile residents who were in the room in which the second fire was lit and did nothing thereafter to alert anyone to the existence or seat of the second fire.
Her Honour did not in my opinion err in assessing Mr Dean's level of culpability by reference to his having foreseen that there was a real chance of a number of deaths when he lit the fires.

(ii) That Mr Dean had not intended to occasion death or harm to any resident of the retirement home

Second, Mr Game emphasises that in the present case there was no suggestion that Mr Dean intended to harm or kill anyone and submits that this sets Mr Dean's conduct apart from all other cases in New South Wales where a natural life sentence has been imposed on conviction of murder by reason of reckless indifference to human life.
Her Honour's attention was drawn by Mr Ierace to R v Reginald Lyttle (Supreme Court (NSW), Newman J, 6 March 1996, unrep), where there was a re-determination of four life sentences for murder that had been imposed in 1976. Mr Lyttle, who had maintained his innocence, but who was found to have lit a fire in a hotel in Kings Cross as a consequence of which 15 residents had died and 22 had suffered burns or smoke inhalation, was re-sentenced (on the basis of felony murder, not murder by reckless indifference to human life) to penal servitude for a minimum term of 28 years and an additional term of life. Mr Lyttle had a history of arson offences, had not intended to harm anyone in the hotel but was not previously of good character. His Honour expressed concern as to his capacity to reoffend.
As to the reliance placed on R v Lyttle, the Crown emphasises that that was a felony murder case and that the re-determination of four life sentences which had pre-dated the introduction of the truth in sentencing ("life means life") terms as well as the standard non-parole period of 20 years for murder.
No error is shown in this regard. Her Honour took into account that Mr Dean did not intend to cause death. His level of culpability was assessed by reference to his foresight that there was a real chance of deaths as a result of his actions.

(iii) Significance of the personality disorder/substance abuse

Third, it is submitted that in combination Mr Dean's personality disorder and poly-substance abuse disorder warranted the conclusion that a lesser sentence than life imprisonment should have been imposed. It is submitted that the personality disorder suffered by Mr Dean was a product of his early life experiences and something outside his control; that the causal link between his conduct and his personality disorder went some way to providing an explanation for his "bizarre decision" to act as he did; and that his substance abuse disorder to some extent impacted on the quality of his decision-making.
As to the import of Mr Dean's personality disorder, reference is made to Dr Diamond's opinion that the early causation of a personality disorder of that nature is "largely about early life experiences" and that, when asked as to whether the early impact on his personality development was that those traits became entrenched in his personality, Dr Diamond said that: a personality disorder is really a diagnosis that one makes because it is entrenched. It is a long term, non-shifting set of characteristics that emanate from long term experiences and they are not reactive to a set of circumstances. They are pervasive and they accompany the person throughout their life experience as a prevailing and present state of their nature.
As to the causal link between his personality disorder and the decision-making, Dr Diamond gave evidence to the effect that: an adjustment disorder such as narcissistic personality disorder is a reactive state to an external event which might make a person miserable or upset or anxious but that it is usually a time limited reaction; there was no impairment to Mr Dean's capacity to foresee the probability of death when he lit the fires - rather, it was to do with putting his needs above others; that Mr Dean had been conducting himself towards others with a belief that he could carry out his behaviours with impunity, including an elaborate system of "doctor shopping", and that his behaviour in the offences continued that process of him deceiving people in the strong expectation that he would "get away with it".
Dr Diamond was not convinced there was any psychiatric illness or significant lack of capacity. Rather, he considered there was a terrible focus by Mr Dean on Mr Dean's own needs at that time and that Mr Dean took this further by lighting the second fire. Dr Diamond's initial understanding (based on what Mr Dean had told him) was that the second fire was lit because the first fire was believed not to have been significant. Dr Diamond said that if the alarm and the smoke were happening at the time the second fire was lit (which was the case) then to light a second fire made his view of Mr Dean's behaviour worse in terms of his "potentially fatal effect and the people who were in that room".
Mr Game also refers to the evidence from Dr Diamond that the substance abuse disorder to some extent impacted on the quality of his decision-making. In cross-examination, Dr Diamond agreed with the proposition that the quality of Mr Dean's decision-making on the night of the fire might have been affected by his drug use, not in a sense as to deprive him of an awareness of the consequences but, rather, so as to impair the quality of his decision-making. Nevertheless, I note that Dr Diamond went on to say that he could not give a firm opinion as to the extent to which the choices Mr Dean had made could be a consequence of his drug use.
Her Honour accepted (at [91]) that there was a causal connection between the offending and Mr Dean's psychiatric condition (that being the underlying personality disorder that Dr Diamond concluded had impaired his decision-making). Her Honour expressly considered whether and to what extent that disorder affected the exercise of the sentencing discretion.
At [99], her Honour identified the relevant causal connection as being the dominance of Mr Dean's own immediate needs over the needs of anyone else, even if they included vulnerable patients under his charge. Her Honour concluded that the "relatively limited impairment, particularly when considered against the scale of the offender's reckless indifference, the enormity of the harm which resulted and the objective criminality of the offender's conduct" carried limited weight in reducing Mr Dean's culpability to any material degree and did not render him an inappropriate vehicle for general deterrence ([100]).
As to the poly-substance abuse, her Honour was clearly cognisant of the fact that Mr Dean's motive in lighting the fires was to evade detection of the theft of the drugs. Her Honour accepted the diagnosis of poly-substance abuse disorder. Her Honour nevertheless concluded that Mr Dean had not ingested drugs that relevantly affected his capacity to form judgments and make calculated decisions. The evidence supported those conclusions. The complaint now made is in effect that her Honour should have concluded that Mr Dean's culpability was reduced by reference to the impact of the poly-substance drug abuse on the quality or logicality of the decisions that he made on that night. Dr Diamond was not, however, able to quantify any such impact. Dr Diamond in effect concluded, and it was open to her Honour to accept, that the most relevant impact on Mr Dean's decision-making was his narcissistic personality and belief that he could get away with stealing the drugs.
Her Honour took into consideration the matters the subject of this aspect of the appeal. No error is revealed in her Honour's treatment of the evidence in relation to those matters.

(iv) Other reasons for the conclusion that culpability was not at a level warranting life imprisonment

In this context, Mr Dean refers to the matters I have noted above (at [115]).
Her Honour referred to the late entry of the pleas of guilty (at [111]). It cannot be (and was not) suggested that her Honour did not have in mind the fact that Mr Dean had pleaded guilty and that this had had utilitarian value. Her Honour nevertheless observed that the pleas indicated a realisation on Mr Dean's part that there was overwhelming and damning evidence of his reckless indifference whilst in a lucid and rational state, rather than any significant degree of remorse. Her Honour's comments must be read as indicating that little weight was put on this in circumstances where the plea of guilty did not evince any significant degree of remorse. It was a matter for her Honour what weight should be put on the value of the guilty plea in circumstances where her Honour's conclusion was that the level of culpability in Mr Dean's offending was one that could not be reflected in a lesser sentence than life imprisonment.
As to the other matters relevant to the facilitation of justice, her Honour had noted, when referring to the police interview and ERISP (the electronically recorded police interview), that Mr Dean had (albeit not when first questioned by the police) ultimately acknowledged responsibility for the fires. Similarly, although her Honour did not expressly refer to the facts that: Mr Dean had waived the right to a committal proceeding, had acknowledged responsibility for the deaths of the eleven residents on arraignment when he offered to plead guilty to manslaughter and had ultimately not contested any of the alleged offences; those were matters leading to the entry of the guilty pleas and, consistent with her Honour's view on that aspect of the matter, can be assumed to have been accorded little weight by her Honour. There is no error there revealed.
Her Honour expressly had regard to the fact that Mr Dean lacked a criminal history ([74]; [112]) and to his difficult background ([70]-[71]). Her Honour accepted that his treatment in custody, principally at the hands of other inmates, had been degrading and distressing to Mr Dean ([112]), though her Honour anticipated that there would be some improvement in his custodial conditions following his classification and by the passage of time. Thus her Honour took into account that Mr Dean had faced (and implicitly might continue to face) difficulty in custody. Although her Honour did not directly attribute this to Mr Dean's homosexuality and effeminate personality, she had earlier recognised the difficulty that Mr Dean's homosexuality had caused in his relationship with his mother and with others during his schooling ([71]) and it may be inferred that this was one of the matters that may have led to the treatment in custody of which her Honour was made aware.
Her Honour, having noted that Mr Dean's rehabilitation prospects were speculative (in the sense that his underlying personality would not change), and having noted Dr Diamond's evidence that persons with a personality disorder do not do so well in an uncontrolled environment where they are free to manipulate others, was nevertheless satisfied that Mr Dean was not at risk of committing serious offences in the future ([110]) and hence took that factor into account.
Finally, her Honour expressly addressed the question of the depth of Mr Dean's remorse (at [109]), which she considered was difficult to gauge principally because Mr Dean's capacity for insight into his offending was compromised by his personality disorder. Her Honour did not suggest that there was no evidence of remorse; rather she appears to have concluded that there was no significant degree of remorse. That conclusion was not shown to have been in error.
The fourth of the "reasons" relied upon for ground 1 is therefore not made good.

Ground 2 - the sentences imposed are manifestly excessive

The same submissions are relied upon in support of this ground as were relied upon in support of ground 1.
To demonstrate that a sentence is manifestly excessive, it must be shown that it was unreasonable or plainly unjust (Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 325; affirmed in Vuni v R [2006] NSWCCA 171 at [33]). As the Crown notes, the task of an applicant relying upon such ground has recently been recognised as being a difficult one (Tuivaga v R [2015] NSWCCA 145 at [44]).
It is submitted for Mr Dean that if this ground succeeds it would be open to the Court to impose a total term of very great length that falls short of a natural life sentence and that in such circumstances a non-parole period also of very substantial length would provide Mr Dean with some hope of release.
The submission for the Crown on sentencing as to the objective seriousness of this case emphasised the number of murder convictions, the number of grievous bodily harm convictions, the vulnerability of the deceased residents and the grievous bodily harm victims, the position of trust of Mr Dean (who was in a position of professional responsibility) and his motive (to cover up the commission of another serious crime).
Having regard to those matters, and particularly the position of vulnerability in which the elderly high care residents were placed, the abuse by Mr Dean of the position of trust that he occupied, and his deliberate actions in not taking steps to alert fire brigade officers to the second fire or to assist in any way at all the immobile residents in the room in which that fire was lit to escape, it cannot be said that the life sentences imposed on him were unreasonable or plainly unjust.

Conclusion

For the above reasons I would grant leave to appeal and dismiss the appeal.
ADAMS J: I agree with Ward JA.
R A HULME J: I agree with Ward JA.

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