R v Dargin

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

SENTENCE 1 HIS HONOUR: The offender, William Roy Dargin, was indicted before me on a charge that he, on 30 September 1998, did murder Estelle Winifred Featherstone. To that charge he pleaded guilty and was convicted. Accordingly, he is for sentence today. 2 The offender asks that in passing sentence I take into account an offence of aggravated sexual assault of the victim committed by him contemporaneously with the homicide. The Crown Prosecutor consents to this course which I propose to follow, a Form 1 having been completed. 3 In order to determine the sentence to be imposed, it is my duty to find the facts which gave rise to the offence. In doing so, the relevant standard of proof is the criminal standard, being proof beyond reasonable doubt. 4 I am satisfied to the relevant degree that Estelle Winifred Featherstone ("the victim") died on the evening of 30 September 1998 as a result of multiple head and neck injuries inflicted upon her by William Roy Dargin, to whom I shall refer as "the offender". 5 The autopsy report of Professor John Hilton, which forms part of Exhibit B, discloses that the victim sustained multiple, gross comminuted fractures to both the lower and upper jaw, the latter involving the sinuses. 6 The neck injuries included bilateral fractures of the hyoid bone and damage to the thyroid cartilage suggestive of attempted strangulation. Professor Hilton further described the injury to the genital area comprised of a superficial tear of the fourchette and considerable bruising around the posterior aspect of the urethra extending slightly into the lateral walls. 7 The means by which the grave and fatal injuries were inflicted have remained undisclosed, however the offender is a strong and fit, albeit obese, young man who was observed by a local medical practitioner, Dr West, to be exhibiting bruising to the knuckles and fingers of his right hand on the day following the homicide. 8 It is common ground that the fatal injuries were inflicted by blows to the face and head of the victim with the offender's fists. 9 The facts surrounding the murder of the victim are clear from the extensive evidentiary material contained in the comprehensive folder, Exhibit B. It is common ground that the Crown case is very strong and that the facts, insofar as they are disclosed in Exhibit B, are not disputed. They may be summarised as follows. 10 The victim, a 72 year old married woman, resided with her husband, Douglas Featherstone, at 18 McDonnell Street, Condobolin. This residence is separated from the Condobolin RSL Club by a narrow laneway. 11 On 30 September 1998, Mr Featherstone travelled in the motorcar of a friend to Orange for medical treatment. He left home about 8.00am and returned that evening between 7.15pm and 7.20pm. He observed no lights to be on in the house, but could hear the television set operating and assumed his wife to be watching it. His calls to her were unanswered. 12 The premises had been modified in a rear extension to accommodate wheelchair access to cater for Mr Featherstone's partial immobility. He did not go to the front of the house but retired to bed. 13 He awoke at about 9.30pm and made his way to the front of the house where he found the front door open and the television still turned on. Mr Featherstone turned off the television set and telephoned the RSL Club, where he assumed his wife would be, requesting that a message be given to his wife to come home. He returned to bed but awoke again at 11.00pm when he undertook a search of the house discovering the body of his wife in a front bedroom. He called the police and family members. 14 Earlier that day, the victim had withdrawn $200 from a bank account. $93.95 of this was used to pay the family electricity account. She also had some winnings from the RSL poker machines. She was last seen by persons, other than the offender, at about 4.45pm to 5.00pm on Wednesday, 30 September at the RSL Club next door. 15 The offender arrived in Condobolin from Parkes on Tuesday, 29 September 1998. He stayed with a relative in a flat at the rear of the Renown Theatre. The material tendered establishes that he was out of money by 5.00pm on 30 September, when he unsuccessfully attempted to borrow $10 from the licensee of the Imperial Hotel. 16 I am satisfied on the evidence tendered that the murder to which the offender has pleaded guilty resulted from injuries inflicted by him upon the victim in the period between about 5.00pm and 5.30pm, the former being a time when the offender was seen in a laneway beside the residence, 18 McDonnell Street, and the latter being a time when he was observed to walk from that location to the flat behind the Renown Theatre. 17 I find that shortly after 5.30pm the offender invited others to drink with him and purchased a significant quantity of alcohol with the money from the victim's purse which he stole from her home. 18 Later in the evening of 30 September, the offender spoke to two acquaintances with whom he and others were drinking and said words to the effect that he had to disclose something to get it off his mind, the disclosures being that he had bashed an old lady for $150, that he thought he had killed her and that he had seen blood coming out of her nose and mouth. He said words to this effect on a number of occasions. 19 Upon execution of a search warrant of the flat where the offender was staying, a purse identified as belonging to the victim was found. The offender's shirt worn by him on the prior evening was located in the flat the next day by a fellow occupant in a bloodstained condition and was handed to police. The bloodstaining on the shirt was established by DNA testing to have originated from the victim. 20 DNA testing of blood stains on other clothing of the offender and from within the home of the victim was established as originating from more than one individual and, if from two persons, was 1.7 billion, billion times more likely to have originated from the offender and the victim than from two other persons each selected at random from the general population. 21 Accordingly, I am satisfied, on the relevant standard, that the offender entered the home of the victim with the intention of stealing money from the premises or of robbing the victim, that whilst in the premises the offender delivered a series of heavy blows to the head and face of the victim and applied force and pressure to her neck causing the multiple fractures to the face, upper and lower jaws and the hyoid bone in her neck, more fully described in the autopsy report, and which resulted in her death which probably occurred between 8.00pm and 8.30pm that same evening. 22 I find further that whilst in the premises the offender sexually assaulted the victim by causing her vagina to be penetrated by an object or objects unknown causing the injuries to her genital area as previously described. 23 The offender is a 24 year old Aboriginal man who was born on 7 April 1976 in Sydney. His single mother was aged 16 at the time of his birth. He was initially brought up by his grandfather and later by his great aunt in Queensland. He ran away from this environment when aged 10 or 11 and lived with an aunt at Mt Druitt who adopted him. He met his mother at the age of about 12 or 13 and lived with her and her defacto husband for some time. 24 The family moved to Condobolin for some time and later returned to Sydney. He has two half brothers and three half sisters. He seems to have a strong bond with his mother whom he contacts daily. 25 The offender has had a grossly interrupted education at a number of primary schools where he exhibited behavioural problems, eventually leaving school at age 15 during Year 9. 26 The offender commenced drinking alcohol when truanting from school, the habit developing to regular drinking once he left school. 27 His youth is described as having been spent in and out of boys' homes, including Minda, Cobham and finally Mt Penang, where he spent nine months following a conviction on a charge of robbery in company. 28 The offender's criminal history is a sad chronicle of criminal activity with numerous entries of offences principally involving dishonesty, but also with episodes of violence extending over eight years to 1998. 29 In her report of 7 October 1999, Ms Anita Duffy, a psychologist, disclosed that the offender admitted to periods of depression during his lifetime and that he tried to overdose on his aunt's heart medication some two years ago. He recounted having always had a bad temper where he became easily aggravated and agitated and, in his words, his "brain explodes". These episodes of ill-temper were exacerbated by drinking alcohol, at which times the offender said he more easily engaged in fights. 30 Ms Duffy administered a number of basic screening tests to assess the offender's personality and cognitive ability. These were said to show a "slight tendency towards, but do not strongly indicate the presence of brain impairment due to prolonged drinking". 31 In her report of 18 November 1999, Ms Julie Hendy, a clinical and consulting neuropsychologist, considered the question as to whether the offender's alcohol abuse had given rise to some brain damage. She expressed the opinion that: "The results of the neuropsychological assessment would indicate that Mr Dargin is a man of below average intelligence but with relative strength in the non-verbal and spatial domain and relevant weaknesses in his language skills." 32 She went on to express the opinion that the offender's scores on the tests conducted by her were not a reflection of acquired brain impairment. 33 The objective seriousness of the crime of murder places it at the head of the criminal calendar. The deliberate taking of the life of another is a crime of the utmost gravity, abhorrent to our community. It attracts a maximum penalty of life imprisonment. In this State, life imprisonment, since the enactment of the Sentencing Act, 1989, has meant imprisonment for the term of the offender's natural life. Such a sentence is, necessarily, reserved for the worst class of case. 34 In the present case, the offender acknowledges his guilt on the Form 1, under s 161 of the Criminal Procedure Act, 1986, to an offence of sexual intercourse without consent in circumstances of aggravation pursuant to s 61J of the Crimes Act, 1900, which itself carries a maximum penalty of 20 years penal servitude. 35 In his comprehensive and helpful written submissions on sentence, Mr Wilson of counsel for the offender, has referred to Regina v Dodd (1991) 57 ACrimR 349 and, in particular, the passage at 354, where the Court of Criminal Appeal adopted the approach of Chief Justice Jordan in Regina v Geddes (1936) 36 SR(NSW) 554 at 556, where the learned Chief Justice emphasises the importance of seeking to determine a sentence appropriate to a particular crime having regard to the gravity of the offence viewed objectively as the foundational premise and the importance of the objective facts and the subjective features of a particular case, not overlooking the risks and attention to persuasive subjective considerations which may cause inadequate weight to be given to the objective circumstances of the case. 36 The aggravating features of the present case include the fact that this was a brutal attack upon an elderly, defenceless woman within the sanctity of her own home. The motivation was a paltry monetary reward which was intended to be used, and was used, for the gratification of a desire for alcohol. There is the further gross aggravation of the sexual offence and the injuries which the victim sustained in this regard. 37 A further aggravating feature of the offender's conduct is that this offence was committed whilst he was on bail with regard to other offences committed by him of which he was duly convicted. 38 Whilst, in the opinion of Professor Hilton, the fractures to the hyoid bone and the damage to the thyroid cartilage were suggestive of attempted strangulation, it is submitted by counsel on behalf of the offender that I could not be satisfied beyond reasonable doubt, on the available evidence, that these injuries were not incidental to the assault upon the victim generally, in that they were consistent with the holding down by the throat of the victim. There is force in this submission and, accordingly, I am not satisfied beyond reasonable doubt that the offender attempted to strangle the victim. However, the inference which follows and which seems to me to be the only reasonable inference open, is that the holding down of the victim in the manner contended for was, and the resultant neck injuries were, part of the sexual assault being perpetrated by the offender at a time when the victim was aware of what was being done to her. 39 The further submission is made on behalf of the offender that the established facts do not make out beyond reasonable doubt the intent to kill the victim and that sentence should be passed on the basis that the central element of intent was the intent to do grievous bodily harm. Reliance is placed on Regina v Isaacs (1997) 90 ACrimR 587 at 592. Support for this submission is sought from the fact that the offender was uncertain as to whether the victim was dead and later that evening sought confirmation from police and an ambulance officer at the crime scene. 40 Counsel for the Crown submits in this regard that the offences took place in daylight hours and that the identity of the offender could well have been established by the victim had she survived, hence the intention manifest in the assault upon her was to kill the victim with a view, at least, to conceal the intended robbery. There is substance also in this submission, however, my view as to the events which took place inside the victim's home at the time of the homicide and immediately prior thereto and the established circumstances, do not permit of a finding beyond reasonable doubt that the offender's intent was to kill the victim. Accordingly, I proceed to sentence on the basis that his intention was to cause to her grievous bodily harm. 41 I am satisfied further that the murder was unplanned and that throughout the day the offender had consumed alcohol with friends and some relatives. His degree of intoxication at the time of the offences is not altogether clear. Ms Jamison, an experienced bar worker, saw a person answering the description of the offender at about 5.20pm or so, in the lane by the Featherstones' house, who appeared to be walking in an intoxicated manner. An hour later in the hotel she saw the offender who did not appear so badly affected. He was observed to be well affected at about 9.10pm by another observer who knew him. 42 Mr Wilson submits that the offender's intoxication should be considered as a mitigating, rather than an aggravating, feature. Reliance is placed upon Regina v Coleman (1990) 47 ACrimR 306, a decision of the Court of Criminal Appeal. In that case, the appellant was convicted of maliciously inflicting actual bodily harm with intent to have sexual intercourse with that male person. He raised the matter of his long term intoxication during the trial. Hunt J, as the former Chief Judge at Common Law then was, with whom Finlay and Allen JJ agreed, at p 327 said this: "Only one matter of general principle was debated, and that was the extent to which the appellant was entitled to have his intoxication at the time of his offence taken into account in mitigation. The degree of deliberation shown by an offender is usually a matter to be taken into account; such intoxication would therefore be relevant in determining the degree of deliberation involved in the offender's breach of the law. In some circumstances, it may aggravate the crime because of the recklessness with which the offender became intoxicated; in other circumstances, it may mitigate the crime because the offender has by reason of that intoxication acted out of character. (I have not intended by those examples to limit the extent to which intoxication may be taken into account: see, generally, Sewell and Walsh (1981) 29 SASR 12 at 14-15; 5 ACrimR 204 at 207.) Where the reason for the offender's intoxication is a self-administered drug rather than alcohol, the cases suggest that that fact may well be more likely to aggravate than to mitigate. But that is not this case. The only evidence is that the appellant had been an alcoholic over a long period of time. At the same time, however, it is clear from the appellant's record and from the medical evidence led that the violence which he exhibited on this occasion was sadly not out of character. In all of those circumstances, in reassessing the appropriate sentence to be imposed I would not place much weight upon the appellant's intoxication in mitigation, but I would not take [it] into account in aggravation." 43 In Regina v Fernando (1992) 76 ACrimR 58, Wood J, as the Chief Judge of the Common Law Division then was, in what is generally considered to be a definitive judgment, commencing at p 62, said this: "(E) While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities, and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects. (F) That in sentencing persons of Aboriginal descent the court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender." 44 The offender's long criminal history is conceded by him in his interview with the psychologist, Ms Anita Duffy, to be one in which intoxication frequently has led to criminal behaviour at times involving violence, albeit not anything like the degree here present, but violent, lawless conduct nonetheless. 45 The offender's claims to have no recall of the events, during the critical time when the offences took place, are wholly inconsistent with his confessional statements to the two persons with whom he was drinking after the offences had been committed, because of the need he felt to get the matter off his mind. 46 Mindful of the principles above referred to, I conclude that in the present case the offender's intoxication is not a matter to which a great deal of weight can be given either in aggravation or in mitigation of sentence. 47 The offender's plea of guilty came at a very late stage. It was entered in the presence of the jury panel when the trial was about to commence and the victim's husband, other family members and other witnesses had already faced the emotional trauma associated with the prospect of giving evidence for a long period of time. 48 Nevertheless, the utilitarian considerations of avoiding a trial stand to his credit and, whilst to some degree an element of contrition is inherent in a guilty plea, there is no evidence of any expression of remorse by the offender to any person at any time. 49 The guilty plea must also be considered in the light of a strong Crown case in which a conviction would appear to have been inevitable. 50 I have had the benefit of considering a schedule of prior decisions prepared by Mr Wilson as offering assistance in identifying an appropriate range of sentence. These cases cited include, in particular, Regina v Bossie (NSWSC, Studdert J, 16 April 1992, unreported), Regina v Broughton (NSWSC, Smart J, 30 May 1994, unreported), Regina v Duke (NSWSC, McInerney J, 15 September 1994, unreported), Regina v Lorenzo (NSWCCA, 22 May 1995, unreported), Regina v Previtera (1997) 94 ACrimR 76, Regina v Sharpe (NSWSC, Wood J, 9 September 1992, unreported), Regina v Sullivan (NSWSC, Simpson J, 14 July 1994, unreported) and Regina v Veitch (NSWSC, Hunt J, 19 March 1991, unreported). 51 In citing these authorities, counsel recognises that it is inappropriate to compare the sentence imposed on one offender with that imposed on another offender who is not a co-offender simply because any two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is the objective gravity of the offence and the subjective circumstances of the particular offender which will inevitably give rise to different circumstances: Regina v Morgan (1993) 70 ACrimR 368. 52 I have considered the cases to which reference has been made. 53 In determining the sentence to be imposed, I have taken into account the Form 1 matter. 54 The general principles of sentencing require consideration of specific and general deterrence, retribution, rehabilitation and protection of the community. 55 It is common ground that the offender's intellectual functioning does not operate at a level where general deterrence would assume significantly lower prominence: Regina v Champion (1992) 64 ACrimR 244. 56 The offender has been serving his sentence in strict protection, apparently resulting from a threat made against him. He has recently been transferred to Parklea Correctional Centre in strict protection for this reason. It is recognised that an offender serving a sentence in strict protection does so under more onerous conditions than those in the general prison population. 57 The need for a lengthy period in custody for a serious criminal offence, such as the present, carries with it, under the ordinary statutory ratio provided for by s 44 of the Crimes (Sentencing Procedure) Act, 1999, a substantial period of parole. 58 Nevertheless, in the present case there are special circumstances which are constituted by the youth of the offender, the fact that he will serve his sentence on protection, his background and the risk of institutionalisation requiring a longer period of rehabilitation and supervision upon release which warrant some, albeit small, variation in the statutory provisions. 59 The offender was taken into custody on 1 October 1998. He has remained in custody since that date. However, a period of six months has been served in relation to matters unrelated to the present offences. 60 It is common ground that his sentence for the present offences is to commence on 1 April 1999. 61 William Roy Dargin, for the murder of Estelle Winifred Featherstone, you are sentenced to 19 years imprisonment which commenced on 1 April 1999 and will conclude on 31 March 2018. There will be a non-parole period of 14 years which will expire on 31 March 2013. 62 The date on which you will first become eligible for release on parole is accordingly 1 April 2013. **********

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