Subjective features
60 The offender CB was aged 22 at the time of the offences. He is now aged 23. He has a criminal record which commenced in 1998 when he received a community service order in the Children's Court for an offence of assault occasioning actual bodily harm. In 2001 he was placed on a bond for shoplifting. In the same year he was imprisoned for three months for the illegal use of a motor vehicle and resisting an officer in the execution of duty. Later in the year a community service order was imposed upon him in respect of a larceny offence. In 2002 he received a suspended sentence for stealing a motor vehicle and a bond for a driving offence. In 2003 he was given a further community service order for resisting police in the execution of duty. Later the same year he served seven weeks in gaol for offences of common assault, intimidation and larceny.
61 CB's father, who gave evidence before me, provided me with details about his son's background. He is the eldest of four children. The family lived in Murrurundi until the offender was aged 7, at which time they moved to Chatham. The family remained there until the offender was about 13, when they moved to Wingham.
62 His father told me that the offender had experienced learning difficulties at school as a result of which he had been taunted by other students. He was also poorly motivated and frequently truanted from school. In Year 7 he was excluded from Chatham High School for having cannabis in his possession.
63 His father and mother (who is a primary school teacher) were sufficiently concerned about his behaviour and academic progress to seek counselling for him from a clinical psychologist, David Spencer, who was employed at the Taree Community Health Centre. Mr Spencer conducted an assessment of the offender's cognitive abilities in 1996 and arrived at the following results:
His reading rate was at an age equivalent level of approximately 8 years of age. His reading accuracy was at an age equivalent level of 9 ½ years. His reading comprehension was at about the ten year level. In general, this would mean CB is somewhere between 4 to 5 years behind what should be his real reading age.
64 Mr Spencer reached the following conclusions about the offender:
On the basis of this assessment, there is little doubt that CB has a significant reading disability. His general level of cognitive skills is at least within the average range and possibly higher, and can not account for the significant deficiencies in his reading abilities. CB's profile of test results on the WISC-III is also indicative of a child with a learning disability. Given CB's learning disabilities, it is not surprising that one also sees associated motivational and behavioural problems at school. Addressing such difficulties is obviously a complex issue, in that one is now dealing not only with educational remediation, but also what appears to be generally negative attitudes towards school. Without significant remedial assistance particularly with reading, it is unlikely in my opinion, that CB will show a significant improvement in his general level of academic performance and motivation for school.
….
As well as CB's learning disabilities, there is some evidence to support the notion of an attention deficit disorder...
65 Unfortunately things did not improve for the offender. In fact they got worse. The offender was subsequently expelled from two further high schools and eventually left school at the age of 15. His behaviour at home also deteriorated. His parents found him impossible to control. His father described him as "living outside the boundaries that we adapted and we had no means to curtail that". He frequently ran away from home and his conduct, which was violent at times, was exacerbated by his dependence upon both illicit drugs, which he commenced using when he was about 13, and alcohol.
66 CB's father said that although he and his wife tried valiantly to prevent him from doing so, his son left home permanently at the age of 16. It appears that he left home shortly after a particular incident, to be referred to further below, which prompted CB's father to report to police that his son had been missing from home for several days.
67 CB's father said that he noticed a further decline in his son's behaviour following that incident. He also observed that his son was unable to look after himself after he left home. He said that he and his wife frequently received emergency calls informing them that their son was in hospital. On occasions the offender attempted suicide and told his parents that he regretted having been born. On other occasions his father observed that he was acting in a psychotic fashion in that he would take on a completely different personality. It seems that his behaviour has been kept under control at times, at least whilst he has been on anti-psychotic medication.
68 The offender's father told me that he and his family would continue to support the offender. He said that the offender now has a partner and a young child. Moreover, his behaviour and physical appearance have improved markedly since he was first taken into custody. It appears that he has been, and is determined to remain, drug-free. He also appears, according to his father, to be developing some insight into his offending behaviour which he is said to regret. I accept that his difficulties with reading inhibit him from doing correspondence courses in gaol which of necessity depend largely upon the use of written material.
69 Because of matters raised for the first time during the course of the offender's father's evidence, the proceedings were adjourned in order that further material could be assembled by one of the police officers with carriage of the matter. Suffice it to say that there is now evidence before the Court which is capable of establishing that this offender was sexually molested on a number of occasions by an adult male when he was aged about 15. The offender has now provided a statement to police in which he sets out the details of those activities. Furthermore, he has undertaken to give evidence in accordance with his statement, should the need arise. As I understand the situation, his father is able to provide some support for the offender's account particularly insofar as he has knowledge that his son had access to unexplained funds at the relevant time.
70 The alleged perpetrator of these offences has already come to the notice of police. Indeed, he is due to face court in the near future in respect of allegations of sexual misconduct of a similar kind which are said to have been committed against another young person. I have not been furnished with the details of those allegations but I was informed that the Crown Prosecutor who has carriage of that matter is of the view that the material provided by the offender has potential value. Moreover, I was informed that the Crown will seek to rely upon it as tendency and/or coincidence evidence pursuant to ss 97 and 98 of the Evidence Act in the trial of the alleged perpetrator in respect of the other complainant. It is however far too early to gauge whether the material will also be used in support of a prosecution of the alleged perpetrator for the offences alleged to have been committed against the offender CB. That matter requires further investigation and the provision of a more detailed statement from the offender CB. I am informed that, if required, he is prepared to provide such a statement.
71 It is pertinent to observe that police were already aware of a connection between the offender CB and the alleged perpetrator of offences against him by reason of the report (to which I referred earlier) made by the offender's father that his son had gone missing. This report was made at or about the time that the activities in respect of which the offender has now made a statement were alleged to have occurred.
72 It is unnecessary, in the circumstances, to further detail the assistance which has been provided to the authorities by the offender. It does however mean that a claim for leniency, pursuant to s 23 of the Crimes (Sentencing Procedure) Act 1999, needs to be properly considered. In due course I shall consider that matter in a little more detail.
73 Dr Westmore prepared a report at the request of the solicitors acting for the offender CB. He diagnosed him as suffering from a psychotic illness at the time of the incident. It was not however of a kind that would enable him to rely upon the provisions of s 23A of the Crimes Act. For the purposes of his examination, Dr Westmore was provided with the offender's prison, medical and psychological files. Dr Westmore described that material in the following terms:
The available medical notes are quite voluminous and will not be reported on individually in this report, however the documents do indicate that CB has suffered from a psychotic illness in the past and that it was thought that the illness was likely to be drug induced. Clinical notes made shortly after he was admitted into custody indicate that he was agitated and behaviourally disturbed. He was banging walls and it was thought that his mood was elevated. He was seen to be singing and dancing. A nursing entry indicates that he had poor impulse control and that he was sensitive to perceived hostility. A self harming attempt by hanging is noted to have occurred in 2000 and he reported being suicidal every day.
An entry dated 16 August 2004 noted that he was emotional at times but there was no evidence of any perceptual disturbances. A review on 25 August 2004 indicated he was agitated and his speech was pressured. His affect was elevated. Again no perceptual disturbances were described. This author felt that CB remained psychotic but the symptoms of his illness were responding to treatment. These entries appear to have been made predominantly by nursing staff and no clear diagnostic formulations seem to have been made in relation to CB and the precise nature of the reported psychotic symptoms is unclear.
A medical entry on 1 November 2004 diagnoses CB as suffering from either a schizophrenic illness or a drug induced psychosis.
74 Dr Westmore concluded that the psychosis from which the offender was suffering at the time of the offences was drug induced. There was no evidence however that the offender entertained delusional beliefs or had hallucinations about his victims.
75 Dr Westmore also concluded that the offender's "explanation for his actions [was] essentially non-psychotic". That explanation included an account that he and his co-offender had gone to Mr Atkin's home pursuant to a plan to rob him of his drugs. The offender CB told Dr Westmore that on the day of the offences he had used between one and three grams of "speed and ice" which he had taken intravenously. Dr Westmore was of the opinion that the offender's drug dependency at the time affected "his judgment and his impulse control". Dr Westmore reported that the offender had informed him that:
at the time the current offences arose he was also breaking into shops. Later he would continue hearing alarm sounds in his head, the sound of screeching car brakes and breaking windows. He said he would also hear the shower running. He told me he was laughing and crying at the same time.
76 Dr Westmore reported that the offender had been placed on antidepressants when he first was taken into custody. He had however been off all medication for a period of time and he informed Dr Westmore that his mental state had stabilised in that time. It seems that for a short period of time, after he had revealed to the court details of the sexual abuse which he had suffered, the offender resumed taking medication.
77 Finally Dr Westmore, who also gave oral evidence before me, expressed the view that the offender graduated to using more potent drugs only after he was sexually abused.
78 The offender IM was aged 23 at the time of the offences and is now 25. He too has a criminal record. It also began in the Children's Court where in 1997 he was sentenced to a control order of three months in respect of offences of armed robbery and common assault. In the same year he was placed on probation in respect of offences of common assault and malicious damage. In 1998 a control order of six months was imposed upon him for offences of driving a conveyance which was taken without the consent of the owner. A similar offence in the same year attracted a fine. He was also placed on a recognisance for malicious damage to property. In 1999 a control order of eight months was imposed upon him for stealing a motor vehicle. In 2000 he was fined in the Local Court for offences of having custody of an offensive implement and for malicious damage to property. In 2001 he was sentenced to six months imprisonment for an offence of break, enter and steal. In the same year he was also placed upon a bond in respect of offences of receiving stolen property, assault occasioning actual bodily harm, larceny, intimidation and malicious damage. In July 2004 he was sentenced to 16 months imprisonment, which was suspended upon condition that he enter into a bond to be of good behaviour, in respect of offences of assault occasioning actual bodily harm and being carried in a conveyance which was taken without the consent of the owner. Accordingly he was on conditional liberty at the time of these offences.
79 I have been provided with a report by Dr Olav Nielssen about the offender IM. The following extract from the report sets out details of his background:
IM said that he was born in Blacktown Hospital and was the youngest of three children. He said that his older brother is also in gaol and his sister moved to Queensland. He said that his father was from the former Yugoslavia, but he did not speak his father's language or know much about his father's background.
IM said that his father was "a bad alcoholic" who was violent towards he [sic] and his siblings when drunk. He said that neither of his parents worked consistently and the family were always short of money. He said that he was placed in foster care for a period during early childhood but could not remember the exact years. He said that when he was seven or eight years old he returned to the care of his parents and the family moved to the Newcastle area.
IM said that he did not know anything about his early development. He said that he was disruptive from kindergarten and truanted school regularly from the latter part of primary school and left school altogether in Year 7. He said that was unable to read or write despite periods spent in juvenile justice centres when he had remedial education. He said that he had never had any kind of paid work and has supported himself by crime from the age of twelve.
IM said that his upbringing was affected by sexual abuse in [sic] the hands of a paternal uncle. He said that he told his father what happened but his father said he did not believe him and did nothing about it. He said that he was later classified as uncontrollable and placed in a home by his parents, but he saw it as "a way of getting away from the abuse".
IM said that he had been in a relationship with his girlfriend for nine years and they had a son now aged two and a half. He said that his only hobby had been "being a dad".
…
IM said that he had abused most classes of drugs from the age of twelve. He said that he began with cannabis and alcohol but was dependent on heroin within a few years and described heroin as his favourite drug, as he said it made him "a nicer person". He said that he began using heroin regularly after his release from prison in 2001 and his greatest intake was as much as a gram of $300 worth per day, accompanied by severe withdrawal symptoms when unable to obtain heroin.
He said that he had taken gas (amphetamine) from the age of fourteen whenever it was available, usually in periods of continuous use of up to two weeks at a time. He said "the gas eats me away" and affected his physical health as he stopped eating and often became paranoid.
He did not report any periods of abstinence apart from time spent in custody and said that he had never attended any kind of drug rehabilitation centre or been prescribed anti-craving medication such as methadone.
80 The offender told Dr Nielssen that in the weeks preceding the offences he and CB had been using drugs together. He told him that "we were both lost and scattered to the max". He claimed that he was badly affected by drugs at the time of the offences and was "not sure what was real and what was not". He informed Dr Nielssen that "whilst he remembered some of what happened he did not remember the sequence of events that led to the commission of the [offences]".
81 Dr Nielssen diagnosed the offender as having an "adjustment disorder with depressed mood" together with a history of substance dependence and abuse. He summarised his opinion of the offender in the following terms:
IM is a twenty four year old man who reported a difficult upbringing with parental neglect, physical and sexual abuse, conduct problems in childhood, institutional care, disrupted education, severe substance abuse from early adolescence and no vocational training or employment. The only positive feature of the history he provided was a relatively longstanding relationship with his partner and mother of his child, despite his behaviour towards her.
The diagnosis of substance dependence and abuse was made on the history of a period of opiate dependence and the harmful physical and psychological consequences of amphetamine use.
The diagnosis of low intelligence was made on the basis of clinical assessment of intellectual function, taking into account the effects of his disrupted education and the lack of stimulation in his upbringing.
82 The offender IM was prescribed an anti-depressant when first admitted into custody.
83 A further report prepared by a consultant forensic psychologist, Tim Watson-Munro, was also tendered on behalf of the offender IM. He reports that although the offender professed to have limited recall of the events of the night in question he nonetheless "expressed regret for what occurred, which appears to have developed in the context of his increasing insight into his problems in the setting of him being drug-free since the time of his arrest". In addition to his claim that he has remained free of drugs since his incarceration, the offender maintains that his health has improved and that he has gained 20 kg in weight. He has also undertaken a number of drug and alcohol awareness courses whilst in custody and currently has employment within the gaol system.
84 Mr Watson-Munro agreed with Dr Nielssen's diagnosis of the offender. He went on to explain in the following terms the setting within which those disorders had occurred:
IM alleges that he was sexually abused by a paternal uncle during his formative years. He alleges that the abuse went on for quite a number of years and that there was some passive avoidance of the issue by his father. In relation to this he claims to have told his father what was occurring but there was strong denial from the father and in this setting the abuse continued.
As a consequence of this, IM developed a broad spectrum of symptoms indicative of a diagnosis of an Adjustment Disorder. These included flashbacks to the abuse, protracted sleep disturbance with nightmares, anticipatory anxiety, hypervigilence to danger, an inability to trust people and a sense of despair regarding the future in the context of ongoing depression.
Because of the denial which occurred in the family, he remained symptomatic without treatment. It appears to have been essentially in this context that he started using hard drugs at an early age.
85 Mr Watson-Munro referred to the offender having suffered:
…symptoms of amphetamine psychosis inclusive of auditory hallucinations, disorientation in time, place and person, severe paranoia and ongoing sleep disturbance.
86 He concluded that that material suggested that the offender's "judgment was severely compromised at the material time in relation to the current offences".
87 Dr Nielssen and Mr Watson-Munro both report that the offender IM complained to them that he had been sexually assaulted as a child. Although the offender did not give sworn evidence about the matter I am prepared to accept that conduct of that nature did occur, on the basis that there is independent corroboration that it did. To that end I was provided with material from the Children's Court which demonstrates that a 16 year old male was found to have committed an act of aggravated indecency upon the offender IM when he was 11 years of age. The offence, which occurred in October 1992, took place in bushland but was apparently witnessed by two people. The offender IM maintained that the other man was endeavouring to rape him at the time that they were disturbed by the two eyewitnesses. The eyewitness accounts provide support for that allegation. He also maintained that the other man threatened him if he did not comply with his wishes. It is to be noted that the offender made an immediate complaint to his parents about the perpetrator who was obviously someone well-known to them. The matter has proceeded upon the basis that the perpetrator is the same person to whom reference was made in the reports of Dr Nielssen and Mr Watson-Munro.
88 I have received two victim impact statements from the deceased's family. One was from his brother and the other was prepared on behalf of his mother by a psychologist from whom she has been receiving counselling. That material details the impact which his death has had upon them, both physically and emotionally. His mother expresses her grief, anguish and sense of despair at having lost the son to whom she gave life. There is reference also to the particular anguish which she experienced by reason of being deprived of the opportunity to view her son's body for a final time because of its condition. That exacerbated her distress particularly because she and the deceased had had a disagreement which remained unresolved at the time of his death.
89 The feelings which the deceased's family express and the sense of loss which they have each suffered are entirely understandable. It is impossible to adequately summarise that sense of loss in a few sentences and to do so, or to attempt to do so, would detract from the contents of those statements. Clearly no sentence which any court could impose can ever begin to make good that loss. I am aware of course that the effect of Mr Sansom's death upon his relatives is not, for present purposes, a relevant consideration: see R v Previtera (1997) 94 A Crim R 76. Nevertheless the court expresses its profound sympathy to all those who have suffered, and who continue to suffer, by reason of his death. The above remarks apply equally to Mr Atkin and his family.