KNIGHT v REGINA

CITATION: KNIGHT v REGINA [2006] NSWCCA 292

DPP v England (1997) 186 A Crim R 99 Ibbs v The Queen (1987) 163 CLR 447 R v Baker (unreported, CCA 20 September 1995) R v Bell (1985) 2 NSWLR 466 R v Benitez (2006) NSWCCA 21 R v Cramp (2004) NSWCCA 264 R v Engert (1995) 84 A Crim R 67 R v Garforth (unreported CCA 23 May 1994 R v Kalache [2000] NSWCCA 2 R v Kalazich (1997) 94 A Crim R 41 CASES CITED: R v Merritt (2004) 59 NSWLR 557 R v Miles [2002] NSWCCA 276 R v Petroff (unreported, 12 November 1991) R v Scognamiglio (1991) 56 A Crim R 81 R v SLD (2003) 58 NSWLR 589 R v Sutton [2004] NSWCCA 225 R v Thomson and Houlton (2000) 49 NSWLR 371 R v Valera [2002] NSWCCA 50 R v Wright (1997) 93 A Crim R 48 R v Yeo (2002) NSWSC 315 Veen v The Queen (No 2) (1988) 164 CLR 465 at 478 Weininger v The Queen (2003) 212 CLR 629

The relevant principles 20 The sentencing judge was careful to consider the principles which have been identified by this Court to be appropriate when a court is contemplating imposing a life sentence. It has been emphasised on many occasions that the sentencing of offenders is a complex and difficult task requiring a judgment to be made with respect to many considerations which may not necessarily, and often do not, point to the same conclusion. 21 There will rarely be only one correct sentence for any particular offender. As much as a conventional sentencing decision is difficult, when sentencing for murder in circumstances where a life sentence may be appropriate and where, if sentenced to life imprisonment, the offender will never be released the task is even more onerous. The problems are acute when the offender might be expected to live for another forty years or more and where, although guilty of a heinous crime, and a present danger to the community, the impact of incarceration and the amelioration of criminal tendencies with time could result in that person being satisfactorily returned to society at some, although distant, future time. 22 These considerations have led this Court to require that sentencing judges carefully consider whether the facts of any particular case justify the finding contemplated by s 61(1) of the Crimes (Sentencing Procedure) Act 1999. That section is in the following terms: "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." 23 Section 61(1) has been the subject of consideration in a number of decisions. It is not necessary to analyse them for present purposes beyond a statement of the following principles: · 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. · 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. 24 In the present case the sentencing judge undertook the two stage process finding that the murder fell into the most serious category and that having regard to her personal history of violence and flawed personality, a life sentence was appropriate. His Honour's summary remarks were as follows: "The prisoner has pleaded guilty to a murder which falls into the most serious category of murders. I am satisfied beyond any doubt that such murder was pre-meditated. I am further satisfied in the same way that not only did she plan the murder but she also enjoyed the horrific acts which followed in its wake as part of a ritual of death and defilement. The things which she did after the death of Mr Price indicate cognition, volition, calm and skill. I am satisfied beyond reasonable double that her evil actions were the playing out of her resentments arising out of her rejection by Mr Price, her impending expulsion from Mr Price's home and his refusal to share with her his assets, particularly his home, which he wanted to retain for his children. I have no doubt that her claim to amnesia forms part of her plan to affect madness in order to escape the consequences of her acts and to provide a convenient basis, on which to rely to avoid detailed questioning by the police and escape punishment. As I have said, the prisoner showed no mercy whatsoever to Mr Price. The last minutes of his life must have been a time of abject terror for him, as they were a time of utter enjoyment for her. At no time during the hearing or prior thereto did the prisoner express any regret for what she had done or any remorse for having done it; not even through the surrogacy of counsel. Her attitude in that regard is consistent with her general approach to the many acts of violence which she had engaged in against her various partners, namely " they deserved it" . In addition the prisoner's history of violence together with her flawed personality cause me to conclude, along with Dr Milton and the other psychiatrists called in the case, that she is without doubt a very dangerous person and likely, if released into the community, to commit further acts of serious violence, including even murder against those who cross her, particularly males. A crime of the kind committed by the prisoner calls for the maximum penalty the law empowers the court to impose. An examination of the cases referred to by counsel supports the view that I have formed, namely that the only appropriate penalty for the prisoner is life imprisonment and that parole should never be considered for her. The prisoner should never be released."

The appeal 25 The applicant pressed five grounds of appeal. In my opinion each ground should be rejected. 26 It was submitted that his Honour was in error in finding that the offence was in the worst class of case and that there was little to distinguish this case from an ordinary domestic murder. To my mind there will always be difficulties in attaching precise labels to a particular offence and I would be reluctant to acknowledge that "an ordinary domestic murder" would be an appropriate description of any offence for the same reason the courts have been reluctant to define the elements which comprise a worst case: Veen v The Queen (No 2) (1968) 164 CLR 465 at 478. However, there are present in the applicant's case a number of features which in my opinion justify its categorisation as being in the worst class of case. 27 His Honour found, and in my opinion the finding was justified, that the applicant had planned to murder Mr Price for some time prior to the actual killing. I have previously set out his Honour's consideration of these matters. Her crime was not one committed during a momentary lapse of mind or in a spontaneous rage. The objective facts justify the conclusion that the applicant set upon the deceased whilst he was prone in bed and inflicted a number of wounds to his abdomen. He then sought to escape but she inflicted successive cuts with a large knife to his back and buttocks. She then set about defiling his body in a calculated and precise manner. There was no suggestion that the killing was committed in a fit of rage or when the applicant had temporarily lost control of herself. Her motivation was plain. Her relationship with the deceased was failing and rather than be rejected she decided to kill him. 28 The applicant submitted that her mutilation of the deceased's body following his death was not relevant to the objective seriousness of the offence. In my opinion this submission must be rejected. As this Court said in R v Yeo (2002) NSWSC 315 at [36] the offender's treatment of the deceased's body can be taken into account in assessing the seriousness of the offence (see also R v Garforth unreported, NSWCCA, 23 May 1994; DPP v England (1997) 186 A Crim R 99). 29 This was a violent and cruel crime during which the deceased must have suffered extreme trauma. He was stabbed numerous times. The violation of his body reveals an utter contempt for the deceased and for his children. 30 The applicant submitted that "it was not open to his Honour to find that the applicant was so dangerous that she could never be released." I do not accept this submission. It is now settled that the sentencing judge does not have to be satisfied of the risk of re-offending beyond reasonable doubt: R v SLD (2003) 58 NSWLR 589. To my mind there was more than sufficient evidence to justify his Honour's conclusion in this case. As his Honour found, the evidence reveals a pattern of violent and vengeful behaviour visited upon her previous partners and the deceased. This behaviour extended to engaging her nephew to assault the deceased and steal his motor vehicle. Dr Delaforce noted the applicant was herself fearful "that she would repeat her behaviour if released from prison" and concluded that she had a "continued high risk of violence to self and others, especially when relationships with males end, or are thought to be ending." Dr Delaforce is of the opinion that these personality traits would not change significantly in the future. Dr Milton concurred with Dr Delaforce. 31 As I have indicated, in R v Garforth (unreported, NSWCCA, 23 May 1994) the court rejected the submission that it was only in a case where there was no chance at rehabilitation that the maximum penalty of life imprisonment should be imposed at [15]. Similarly, in R v Baker (unreported, NSWCCA, 20 September 1995) Barr J rejected the suggestion that a life sentence should never be imposed if there is some prospect of rehabilitation at [10]: "An alternative way of putting such an argument would be to say that where a prisoner had some prospects of rehabilitation, his crimes could never be regarded as falling into the worst category of case. I would reject such an argument." 32 The applicant submitted that his Honour's finding that she had a violent personality, having regard to the evidence of her violence toward former partners, was inappropriate because it failed to have regard to evidence, particularly from the applicant's children, of the violence perpetrated on her by those partners. Although it is apparent that his Honour did not refer to that evidence in his reasons, he obviously had regard to it when forming his conclusion. His Honour's speaks of difficulties in accurately describing these relationships and says of Mr Kellett that his version of what occurred in the marriage was "the more correct." As to Mr Saunders his Honour says that the question of whether he was the aggressor in the relationship "is not able to be resolved satisfactorily." 33 Notwithstanding his criticism of the sentencing judge's reasons counsel for the applicant accepted that at the least it was plain that the applicant had been involved in a series of violent domestic relationships in which "she gave as good as she got." If this evidence went no further, and in my view it did, it could not be concluded that the appellant's violent outbursts were explained by violence inflicted upon her or that her actions could be explained or justified because she was a victim of indignities inflicted upon her. 34 I have considered all of the material before the sentencing judge. Not only did counsel concede that his Honour's findings were open on the evidence in my opinion those findings were justified. The applicant was prepared to resort to violence and inflict real harm on other people. Most significantly she was prepared to use knives and ultimately, as the facts of this case demonstrate she was prepared to carry out a brutal killing rather than allow the applicant to terminate their relationship. 35 Complaint is made that the sentencing judge erred by not giving the applicant any discount for her plea of guilty and discounted the utilitarian value of her plea because of the strength of the Crown case. 36 I have previously set out his Honour's reasoning with respect to the plea. I am not persuaded that his Honour's decision to deny a discount was other than appropriate. 37 In my opinion the utilitarian value of the plea was limited, being effectively offered on the first day of the trial. It is apparent that his Honour did have regard to the strength of the Crown case when considering the plea and in this respect his Honour may have erred: R v Thomson and Houlton (2000) 49 NSWLR 371 at 416; R v Sutton [2004] NSWCCA 225 at [12]. However, the error was of no moment. His Honour was satisfied that in any event the circumstances relating to the offence and the offender were such that the plea of guilty could not justify any discount of her sentence. see R v Miles [2002] NSWCCA 276; R v Kalache [2000] NSWCCA 2; R v Thomson and Houlton (2000) 49 NSWLR 383 at [157]. That finding was clearly open to his Honour and in my view was correct. 38 The applicant further submitted that his Honour erred by not taking into account the applicant's psychiatric disorder as a mitigating factor. The submission was in the following terms: "The second factor, which it was argued mitigated the offence, was the applicant's psychiatric disorder. There was a conflict in the psychiatric evidence about the applicant's psychiatric condition. Dr Rod Milton, who was called by the Crown, was of the opinion that the applicant's personality problems were not in the nature of a psychiatric disease, they were her nature. Dr Delaforce, who was also called by the Crown, diagnosed the applicant as suffering from a borderline personality disorder and post traumatic stress disorder. He specifically did not find that she was a psychopath. Dr Lambeth, who was called by the applicant, also found that the applicant suffered from a post traumatic stress disorder and from a borderline personality disorder. His Honour did not reach a firm conclusion about the conflict between the experts as to the applicant's psychiatric condition. His Honour found that, even on the most favourable case made for the applicant, the personality disorder was involved in the applicant's decision to kill, 'but it does not explain the time and the full circumstances of the killing, which come from factors not associated with the borderline personality'. As a result his Honour concluded that the applicant's mental condition 'does not, in my opinion, operate to reduce the penalty which otherwise should be imposed.' His Honour clearly treated a connection between the applicant's mental condition and the offence, as a precondition for using the psychiatric condition as a mitigating factor. It is submitted that in so doing, his Honour was in error: see Engert (1995) 84 A Crim R 67 at [68] and [71]; Regina v Letteri (NSWCCA unreported 18 March 1992 at [12]); Regina v Benitez [2006] NSWCCA 21 at [39]." 39 There could be little doubt that an uninformed person would be likely to conclude when given an account of the relevant facts that the applicant was mentally ill or perhaps mad. However, the psychiatric evidence in the case presents quite a different picture. Although Dr Delaforce diagnosed the applicant as suffering from post traumatic stress disorder and borderline personality disorder he emphasised that her actions in carrying out the murder were part of her personality and not a manifestation of any psychiatric disorder. Dr Lambeth made a similar diagnosis to Dr Delaforce, although he was of the opinion that her condition was pervasive and affected all parts of her life. However, he did not accept that her personality disorder provided a complete explanation for her crime. Dr Milton's evidence was to similar effect. 40 The applicant does not identify the impact which it is submitted the applicant's psychiatric disorder should have had on the applicant's sentence. The appropriate principles have been defined in many cases. In particular mental illness may result in a sentence where less weight is given to specific or general deterrence: R v Scognamiglio (1991) 56 A Crim R 81; R v Wright (1997) 93 A Crim R 48; R v Benitez (2006) NSWCCA 21. It may be relevant to consideration of matters of retribution or the need for treatment outside the prison system: R v Engert (1995) 84 A Crim R 67. It may also be that because of a mental condition the prison term may prove more onerous for a person suffering from a mental illness. 41 In Engert Gleeson CJ said at [67]: "… the question of the relationship, if any, between the mental disorder and the commission of the offence, goes to circumstances of the individual case to be taken into account in the application of the relevant principles. The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case. For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public." 42 Although a person may be suffering from a mental illness which might otherwise point to mitigation of their sentence consideration of matters relating to the protection of society may have the effect that the sentence should not be reduced. In Veen v The Queen (No 2) (1988) 164 CLR 465, Mason CJ, Brennan, Dawson and Toohey JJ said at 476-477: "… a mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter. These effects may balance out … " 43 In the present case his Honour found that the offence was premeditated and accepted the psychiatric evidence that it was a reflection of the violent characteristics in the applicant's nature. Accepting that she has some psychiatric problems the evidence does not suggest that for this reason the need for general deterrence was diminished. His Honour found that having regard to the psychiatric evidence the applicant's personality is unlikely to change in the future and that if released she will be a danger to members of the community. It was appropriate to weigh this finding in the balance when concluding that a life sentence was appropriate. 44 The applicant complained that his Honour did not give sufficient weight to the fact that she did not have a criminal record. At one point his Honour referred to the applicant as having "no significant criminal record" and later "the absence of previous criminal convictions." Nothing turns upon this distinction. His Honour sentenced on the basis that the applicant had no prior convictions although he was mindful of her previous violent behaviour. There is no difficulty in this approach to the sentence: see Weininger v The Queen (2003) 212 CLR 629. As I have indicated the findings that the applicant had been violent towards her former partners were open. That they were relevant to the sentencing task cannot be doubted; R v Cramp (2004) NSWCCA 264 at [52]. 45 Finally, it was submitted that a life sentence was manifestly excessive. It will be apparent from what I have already said that this submission should be rejected. This was an appalling crime almost beyond contemplation in a civilised society. The applicant determined to kill the deceased in a violent manner inflicting multiple deep wounds and after his death set about mutilating his body and in a macabre manner presented portions of it as a meal for his children. The crime was the product of a violent personality intent upon claiming the life of her de facto in a relationship which was plainly failing. She expressed no remorse or contrition. The psychiatric evidence indicates that her personality is unlikely to change in the future and, if released, she would be likely to inflict serious injury, perhaps death on others. The deceased's family may be at particular risk. 46 To my mind the sentence was appropriate and no basis for interference by this Court has been identified. 47 Although I would grant leave to appeal I would dismiss the appeal.

(1987) 163 CLR 447

(1985) 2 NSWLR 466

(2004) 59 NSWLR 557

(2003) 58 NSWLR 589

(2000) 49 NSWLR 371

(1988) 164 CLR 465

(2003) 212 CLR 629

(1968) 164 CLR 465

(2000) 49 NSWLR 383

[2002] NSWCCA 276

[2006] NSWCCA 21