R v DA-PRA

SENTENCE 1RS HULME J: On 21 May 2012, the Prisoner was convicted by a jury of three offences committed on 18 December 2009:-

1. That he killed Gervasio Da-Pra in circumstances that amounted to manslaughter.
2. That he murdered Emma Wighton.
3. That he caused grievous bodily harm to Vivienne Wighton with intent to murder her. 2It now falls to me to sentence the Prisoner in respect of these offences. I instruct myself that any findings I make in the course of doing so which are not necessarily implicit in the jury's verdict must be consistent with those verdicts, that any findings which tend to go in aggravation of the Prisoner's criminality must be made beyond reasonable doubt but in the case of any that go in mitigation, it is sufficient if I find them on the balance of probability. 3There was no dispute in the trial that the Prisoner had committed the physical acts necessarily involved in these offences. In the case of all three offences, the major issues were whether the Prisoner had established the defences of mental illness or substantial impairment by abnormality of mind. In the case of the second and third offences, there was also a subsidiary issue whether they came about as an incident of the Prisoner attempting to create a diversion or alibi in consequence of the first offence. 4The only evidence as to the circumstances of the death of Gervasio Da-Pra came only from persons such as the police and pathologist who came upon the scenes of events subsequently and from the Prisoner. The latter's account of those circumstances to a psychiatrist, Dr Allnutt, is consistent with what was seen by the others and may be accepted. According to Dr Allnutt, on the morning of 18 December, the Prisoner:- "... woke up feeling anxious and nervous. He wanted to speak to his father to tell him he had to give the bikies what they wanted. He did not know how to tell his father he was going to die, that the bikies were going to kill him. He decided he needed to tell his father, however, to save his mother and he intended to tell his father that the bikies were coming to the house and if he did not give them what they wanted they would kill him and torture his mother. He went and spoke to his father; he told him people were going to come to the house demanding his mother. His father did not believe him. He showed his father the knife to prove he was serious. He told him it had to do with Boris and they were coming after the family. He and his father started arguing. His father was blaming him. His father thought he was organising the extortion. He told his father he had to give him what 'they', the bikies, wanted. At this, his father hit him. He said he reacted. He lost his temper and knocked him out. He believed he had no choice. His father was not going to listen and give the bikies anything. He thought his mother was going to die. He decided he had to kill his father to save his mother. He hit his father in the throat and suffocated him. At the time he was scared for his mother. He did not know what else to do. He had to kill his father to save his mother. Afterwards he felt scared his mother might find the body, have a heart attack and a nervous breakdown. He put the body in the car and took it to the shopping centre. He left the car there. He thought the police might find the car. He did not want his father to be in the car for too long. He was hoping they would find him. He did not want to kill himself. At the time he thought bikies were coming after him and he needed to kill himself to save family and friends. He thought, if he came to gaol, the bikies would kill him in gaol. 5Dr Allnutt's account of what the Prisoner had told him in that first interview continued:- He thought of an alibi, he walked back home, he went to the neighbours and told them his car had broken down and he needed to use their phone. On the way to the neighbours he thought he was being followed. He knocked on the neighbour's door with the intention of making a phone call to his father to establish an alibi. He believed he had to get away, the bikies were coming after him. As the neighbours let him into the house he noticed that there was a blue car he saw following him and turn into the street. He rushed into the house hoping that they did not see him. He was distressed at having just killed his father and was anxious. He went to the toilet and borrowed a phone. He felt nervous and scared. He was unsure what to say. He said the lady came up and grabbed him. He panicked and reacted. He hit her in the face. The lady and the girl started screaming. He thought the girl pushed him in the back. At the time he thought it was the people from the car who had come to kill him. He grabbed his knife and swung around and lashed out with the knife. He recalled he was slashing. At the time he thought he was slashing people from the car. He was scared for his life. The girl and the mother stopped screaming and he noticed there was blood and realised what he had done. 6In a later interview with Dr Allnutt, the Prisoner added, inter alia, that:- He decided to go to the neighbours to ring his father. The neighbours were the first people who came into his head which is why he chose them. He had not really met them before. It was a thought that came straight to his head. He walked to the neighbours. On the way, he was trying to think about what to say. He decided he was going to say his car broke down and he needed to call his father. He thought that by ringing his father this would establish a view that, at the time he rang him, he did not know he was dead. There was nobody at his home who could witness him making the phone call, so he went to the neighbours. He told Vivienne Wighton that he needed to use a phone to ring his father. She opened the door and he thought he saw the same blue car turning into their street. He panicked and rushed into the house. ... After he hit Vivienne Wighton, the thought came to his mind to tie them up. He needed to get away. He was scared of getting caught for his father's murder. He was thinking of tying them up and taking money to get away. This was the first time that this thought came to his mind. He needed money to leave the city and get away from the bikies and the police. 7The pathologist Dr Orde could not determine the precise cause of Gervasio Da-Pra's death, but agreed that it flowed one way or another from pressure that had been applied to the deceased's throat. 8The neighbour who let the Prisoner into her house was Vivienne Wighton. Her account of what occurred there differs in some respects from that of the Prisoner and although I accept that both she and the Prisoner must have been the subject of great stress at the relevant time, I am satisfied that her account is the more reliable. 9Her evidence was to the effect that her door bell rang, she went to the front door, the main door was open but the screen door was locked. The Prisoner announced who he was and then wrenched open the screen door, came in, sidled along next to the staircase and moving his fingers as if rolling a cigarette. He was red in the face. Mrs Wighton sidled opposite until they reached the kitchen. There he grabbed her hand, swung her around and started punching her. He punched her twice to the face and she indicated firstly the right side and then the left. In her words, "He finished me off" and she lost consciousness. Phone records in evidence suggest that the attack on Mrs Wighton occurred before 12.15 pm and certainly before 1.30 pm. 10Much later in the day - the evidence of the paramedics would suggest after 7.00 pm - Mrs Wighton made a 000 call. When the paramedics attended, they found Emma Wighton dead on the floor in the family room near the kitchen and Mrs Wighton in a side doorway between the entrance hall and the loungeroom. Both had had their throats cut, in the case of Emma Wighton, the cut extending through the back of her mouth to the spine. The wound included four shallow "tails" into the adjacent skin suggesting a sawing motion of the implement which caused the injuries. It does not seem to me appropriate to call these cuts slashes and there were no other indications of slashing by the prisoner. 11Emma Wighton had also suffered extensive bruising to the lips and chin that Dr Orde thought unlikely to have been caused by only one blow. I find there was more than one punch or the like. There was also a fracture of the skull and other bruising in the area that could have had a number of causes including falling to the floor. There was some patterned bruising to the upper chest but the evidence was not sufficient to explain this. 12A blood spatter expert called by the Crown and whose evidence I accept concluded that Emma Wighton had been supine at the time her throat was cut. 13Mrs Wighton had also suffered a very extensive cut to her throat from one side to the other. The larynx, and the anterior jugular veins were completely transected and the left internal jugular vein and the vasavesorum of the left carotid artery were partially transected. Dr Chin, who operated on Mrs Wighton, gave high praise to the paramedics and hospital emergency staff for Mrs Wighton's survival. 14There was a wealth of evidence which was not challenged and which I accept that, for a substantial period prior to the 18 December 2009, the Prisoner had some belief that he and his family were being pursued by someone called "Boris" and a group associated with Boris or bikies. Although there was limited evidence that these beliefs were not justified, there was some, the trial was conducted upon the basis that they were delusions and I accept that they were. 15I have referred in recounting Dr Allnutt's evidence of what the Prisoner said to him concerning an alibi. The Prisoner gave a number of other accounts as to what had occurred and to which reference should be made. To understand the context of some, it must be mentioned that the Prisoner attended the Emergency Department of the Fairfield Hospital early in the morning of 20 December. There, he pushed a writing pad across the counter asking the recipient to take it to the police. The writing pad smelt as if it had been soaked in petrol. The Prisoner immediately departed. 16On the pad was written a note. After identifying its author and requesting it be taken to the police, the note commenced, "If your (sic) reading this, I'm obviously dead". In the note the Prisoner referred to the threats to his family that he had perceived and having to kill his father himself. The note proceeded:- After killing my father, I was looking for a way to create a diversion, so I went to the neighbours, I was intending to only threaten them, but between what I had just done and what I had to do, I lost all control and in the frenzy I become (sic) a person that even I believe should not exist. I did have a choice of saving my mother as, I was going to die, but now my only mission in life is to make it home and end my life to hopefully show how sorry I am for what took place ... 17In what was obviously a note written earlier but found some time after the Prisoner's arrest, he had referred to the threats to his family:- "That left me no choice but to do it myself. I met someone in a pub in Milperra which decided would give me a hand. However, while I was cleaning up at my parents', Chuck decided to visit next , and I was unable to prevent innocent people from their fate. 18The blank in the above passage represents a small section of the note which was destroyed, and which was followed by the letter "r". It seems probable that the word missing is "door". The evidence did not provide any significant guidance as to who "Chuck" may have been but does provide good reason to conclude that no-one but the Prisoner was in fact involved. 19At about 7.00 am, then seated in a car outside the hospital, the Prisoner set himself alight. It is clear that he had poured petrol over himself before doing so. Police cars were in the immediate vicinity, the fire was extinguished and the Prisoner taken to the hospital. While still on the ground near the car, there was a conversation between Sergeant Barnes and the Prisoner which included the following:- Sgt Barnes Why did you do it? Prisoner I didn't mean to. Sgt Barnes Why did you kill the girl? Prisoner It wasn't meant to happen like that. After I did my dad, I went over there to get an alibi and things got out of hand. I panicked. Then the knife was in my hand and I just started slashing. Sgt Barnes Why did you go back there? Prisoner I didn't go back. Sgt Barnes What do you mean? Prisoner After I finished with dad I went over there. 20In evidence were a number of statements the Prisoner had made to other persons, Dr Tahtouh at Liverpool Hospital on 20 December 2009, Nurse Owens at Long Bay Gaol on 19 February 2010, Dr Goh, a Psychiatric Registrar on 20 February 2010 and later to other psychiatrists. 21Dr Tahtouh's evidence was that after referring to the incident with his father, the Prisoner went on to say words to the effect that he then decided he needed money and went next door looking for money because he did not have any, the little girl screamed and ran past him and he used the knife on her. Nurse Owens said that in the course of his interview with the Prisoner the latter said he was aware he was charged and then said, "Knock him down, knocked down two. Seriously hurt another". The Prisoner said he moved to live with his parents Christmas 2009 but didn't get along with his father, they fought all the time and that his Dad didn't like or want his dog to stay. The Prisoner ended up having a big fight with his father and the incident happened. The Prisoner went on to say words to the effect that he then decided he needed money and went next door looking for money because he didn't have any. He said the little girl screamed and ran past him and he used the knife on her. He said words to the effect, "Didn't want to kill her and then seriously hurt the other one, the grandma. Didn't want to do it, feels bad". 22Dr Goh said that after referring to the stabbing of his father, the Prisoner mentioned a girl and said that he thought he would go to the neighbour's house, pretend that a home invasion had occurred there, take money from the house and then leave the city. According to Dr Goh, the Prisoner then said the girl ran past him when he was holding the knife and he was really sorry it happened. 23Dr Nielssen was the first of the psychiatrists who gave evidence at the trial to whom the Prisoner spoke. According to Dr Nielssen, the Prisoner, after referring to taking his father's body to the shops, said he called on the house and neighbours about 15 minutes later in order to "create an alibi", but that he thought he had been followed to the house having noticed a blue car turn into the street which he believed contained people who were after him. The Prisoner told Dr Nielssen that he pushed his way into the house to avoid being seen. The Prisoner saw Dr Nielssen on 17 March 2011. 24The next psychiatrist to whom the Prisoner spoke was Dr Allnutt on 23 June 2011 and later on 22 September 2011. I have set out above the significant parts of the Prisoner's account to Dr Allnutt. 25The Prisoner was also interviewed by Dr Reutens on 8 May 2012 and he gave her a similar account to that which he had given to Dr Allnutt. 26Combined with the evidence of Mrs Wighton and other soon to be mentioned, these accounts were relied on by the Crown as indicating a degree of rationality on the part of the Prisoner prior to the offences the subject of the second and third counts, rationality that the Crown submitted should lead to the conclusion that at the time of those offences the Prisoner's mental state was such that the mental illness and substantial impairment defences were not established. 27The further evidence consisted in part of some to the effect that a screen door to the garage of the Prisoner's father had been damaged and a computer normally kept in the garage missing. At Mrs Wighton's, a number of external fly screens were damaged, a mobile phone was stolen and there was quite substantial degree of pulling out of clothes etc. from drawers. I am satisfied that these matters reflected actions of the Prisoner. 28The three psychiatrists were called, Dr Allnutt by the Crown and Drs Nielssen and Reutens on behalf of the Prisoner. Dr Nielssen and Dr Reutens opined that that the Prisoner was suffering from paranoid schizophrenia at the time of all three offences, saying that this was a disease of the mind, that it led to a defect of reason and in consequence the Prisoner was not able to reason in a calm and logical way and did not know that what he was doing was wrong. 29Dr Allnutt also said that at the time he killed his father the Prisoner was suffering from a disease of the mind, that this led to a defect of reason and in consequence he was not able to reason about the wrongfulness of his behaviour with a reasonable degree of sense of composure. Because the Prisoner thought that by killing his father, he would save his mother he believed that he was doing no wrong. Dr Allnutt said that the Prisoner's condition was consistent with schizophrenia. 30In the case of the other two offences, in his first report Dr Allnutt was somewhat ambivalent. However, after interviewing the Prisoner again, Dr Allnutt said that based on the Prisoner's account to him which included being followed to the Wighton residence, Mrs Wighton grabbing the phone and Emma Wighton pushing him from behind, it was reasonable to conclude that he had a defence of mental illness because his disease of the mind caused him to be unable to reason about the matter of the wrongfulness in attacking Emma Wighton with a reasonable degree of sense and composure as a person with a rational mind would. He said that the matter was marginal in the case of Vivienne Wighton. 31Dr Allnutt was then asked to provide a third report based upon assumptions different from those which he seemed to have chosen as the foundation of his second report. The assumptions newly proposed were:-