SENTENCE
1 HIS HONOUR: David Graham Fleming has been found guilty of the murder of the deceased Johanne Hatty at Neutral Bay on 18 February 1984. The offender pleaded not guilty when arraigned before the jury but the jury returned its verdict of guilty on 26 April 2007. It is now my task to pass sentence on the offender.
2 I propose firstly to review the evidence that bears upon the circumstances of the crime and the events that led to the offender's detection.
3 The deceased was in 1984 a young woman who lived with Gregory Spicer at 6/196 Kurraba Road, Neutral Bay, a building very close to Spains Lookout in that harbour side suburb. The deceased then worked at Kables Restaurant at the Regent Hotel, Circular Quay, and the evidence discloses that she left work at the completion of her shift sometime after 1.00 am on Saturday 18 February 1984. The assistant manager of the Regent, Ms Charlton, was the last known person to see the deceased alive before this crime was committed. The sighting was in Harrington Street in the city. Gregory Spicer was employed at the Wynyard Travelodge and was working the night shift in February 1984. His evidence was that he had occasion to speak to the deceased several times in her last work shift and the deceased requested him to buy some croissants and the newspaper on the way home from work. Mr Spicer finished work at 7.10 am and caught the ferry home. The deceased was not at home when he arrived and there was no sign that she had been there at any time after he had left for work the previous evening.
4 Later that morning Mr Spicer observed a police vehicle in the street and he went downstairs, crossing to Spains Lookout, where he identified the body of the deceased. The body had been found a short time earlier by the late Eric Robinson, and another nearby resident, Ms Barbara Cardwell, alerted the police whose presence had attracted Mr Spicer's attention.
5 The deceased's body was discovered resting on a narrow rock ledge outside a stone wall at Spains Lookout. The deceased was lying on her back and her clothing had obviously been disturbed. Her handbag was beside her body and the keys to her locked vehicle were found in it. The deceased's vehicle was parked on the roadway adjacent to Spains Lookout and the compelling inference is that the deceased had parked her car there, having driven home from work, with the intention of leaving it there overnight whilst she returned to her nearby home.
6 The evidence compels the conclusion that after the deceased left her car she was attacked and taken onto Spains Lookout where she was strangled and her body was sexually abused.
7 Dr Wong, who at the time was a pathologist with the Division of Forensic Medicine, attended the scene of the crime and on the same day conducted a post mortem. From Dr Wong and from Inspector Birley, the police officer who attended the crime scene, a picture emerged as to the nature of the injuries inflicted on the deceased. Dr Wong detected swelling of the eyes of the deceased and her lips were bruised and swollen. There was bruising of the forehead and at the tip of the nose, there was blood in the left ear and bruising of the right elbow. There was petechial haemorrhaging evidencing disruption of the venous blood supply. Of particular significance, there was a band-like mark around the neck depicted in photographs in evidence. This was consistent with some form of ligature having been applied by means of which the deceased was strangled. Dr Wong determined that the deceased met her death by strangulation causing asphyxiation and that this had been brought about by the application of a ligature of a width no less than the marking on the neck.
8 Dirt marks were observed on the back of the left hand of the deceased and her pubic region was dirt stained. There were also marks on her kneecaps and on the back of her feet. There were scrape markings on the outside rear edge of the left shoe heel.
9 Inspector Birley observed that the deceased's blouse was unfastened at the front and the zipper on her jeans had been fully unfastened. Inspection of the deceased's clothing revealed dirt inside her underpants and a leaf inside the right leg of her jeans, evidencing that both pants had been removed and then put on again. Dr Wong noted a blister on the anterior aspect of the left thigh and he concluded that this blistering was after death because there was no accompanying evidence of bleeding or bruising. Swabs taken at post mortem revealed that there was semen in the deceased's vagina. Dr Wong concluded that the deceased's attacker had intercourse with his victim, and Dr Wong's unchallenged opinion was that this occurred after death.
10 On 18 February 1984 Dr Wong took swabs from the vagina of the deceased, from her rectum and from her mouth. He also prepared slides and these were provided to Dr Baxter, who at the time was the senior forensic biologist of the Division of Forensic Medicine. Testing showed semen on the vaginal swab but Dr Baxter was unable to do blood grouping tests. At that time DNA testing did not exist. On 20 February 1984 Dr Wong took further swabs which were duly tested by Dr Baxter. The second vaginal swab also proved positive for the presence of semen. However, absent the availability of DNA techniques, the police inquiry came to a halt.
11 In 1989 police officers asked Mr Goetz, a forensic biologist with the Division of Analytical Laboratories, to examine the exhibits taken by Dr Wong. Again, with the techniques then available, Mr Goetz was unable to find sufficient material for any DNA procedure.
12 In May 2004 the Division of Analytical Laboratories was requested once again to examine the available exhibits and the senior forensic biologist at that time, Ms Sharon Neville, became involved in the matter. By this time DNA testing had advanced and with the method Profiler Plus introduced in 1998 only very small quantities of material were required to obtain a DNA profile and Profiler Plus had a very high discrimination capacity. In testing undertaken and detailed in the evidence, the later of the vaginal swabs taken by Dr Wong proved to be the source of what Ms Neville described as a very clear complete profile.
13 I do not propose to review all the police evidence that led to this, but Victorian police obtained a sketch prepared by the offender on a sheet of paper, and this found its way to Ms Neville and was the source of a DNA profile which led to the arrest of the offender in Victoria. When he was brought to New South Wales, a buccal swab was taken from him and this too was tested. The DNA profile from the offender's buccal swab matched the DNA profile from the sketch and it also matched the DNA profile obtained from the vaginal swab taken by Dr Wong on 20 February 1984. So it was that DNA profiling established that the offender had the same profile as the male person whose sperm was detected and analysed.
14 This DNA evidence and its significance was central to the prosecution case. The jury was clearly satisfied beyond reasonable doubt that it was the offender who had had sexual intercourse with the deceased and that it was the offender who had caused her death by strangulation.
15 Objectively, this was a very serious crime indeed. It was the crime of a predator who took advantage under cover of darkness of a vulnerable and unsuspecting young woman after she had left her car to go to her home nearby. The evidence establishes that a high degree of violence was employed and that the crime was motivated by a desire for sexual gratification. Not only did the offender cause the death of the deceased, but he defiled her body by the act of intercourse committed after death.
16 This offender has expressed no contrition. Indeed, he has persisted in denying his guilt so there is no element of contrition or remorse to be weighed in his favour.
17 The offender was born on 15 March 1953 so that he was thirty years of age at the time he committed this crime. He is now fifty-four years old. He has no criminal record in this State but he was convicted of rape in the State of Queensland, and at the Mackay Circuit Court on 9 April 1976 Mr Justice Kelly sentenced him to eight years imprisonment with hard labour for that offence. He had no convictions thereafter in the period that passed until he was arrested on 18 January 2005 for the crime for which he is now to be sentenced.
18 The offender is a married man. He met his current wife in about November 1984 after the offender had had a partial amputation of the left leg. The offender's wife now lives in New Zealand. There was tendered in the Crown case on sentence a communication from the Queensland Police Service disclosing that the offender is recorded on the domestic violence index and that the aggrieved spouse was Maureen Anne McConville (see Exhibit D). However, the offender's wife has denied ever making a complaint to the Queensland Police about the offender. Indeed, in her statement, Exhibit 2, the offender's wife has written that the offender was never physically violent to her and that he was considerate and loving. I do not propose to attach any significance to the content of Exhibit D in performing my present task.
19 There have been a number of medical reports in relation to the offender which have been introduced into evidence. I draw on the report of Dr Bruce Westmore, psychiatrist, dated 20 March 2006 to record some matters of the offender's personal history. He was born in Mackay in the State of Queensland and grew up in Cairns. It appears that he had an unhappy childhood and left school at an early age. The offender told Dr Westmore that he drove earthmoving equipment and trucks for a livelihood. He told Dr Westmore he has two daughters and one son by earlier relationships but no children with his present wife, who has been living in New Zealand in the period since the offender was arrested.
20 Exhibit H records a number of admissions of the offender to hospital in Cairns. The first of these admissions was in December 1971 when he was diagnosed as having a personality disorder and reactive depression following a car accident. There was another period of admission in October 1972 and the diagnosis was of a personality disorder. Then there was a further brief admission in December 1972 when a depressive illness was diagnosed. In March 1974 he was admitted to Cairns Hospital after he had been shot in the left leg. In April 1974 he was admitted to hospital again, complaining of pain in the leg, and he remained in hospital for eight days. A history was taken of concerns voiced by his parents as to his being violent at home. In May 1974 there were two further periods of admission, one after a suspected overdose of methadone and the other after a car accident. In December 1975 the offender was admitted to Cairns Hospital for amputation of his fifth right finger, and in March 1983 he was admitted to Cairns Hospital briefly with a gunshot wound to the left hand.
21 The offender came under the care of Dr Selby-Brown, orthopaedic surgeon, in Sydney in 1984. After a long period of assessment, a through-knee amputation was performed by Dr Selby-Brown and after that procedure it would seem that the offender returned to Queensland. There are Cairns Base Hospital records referring to attendances at that hospital in October and November 1984 with problems in relation to the leg stump, and then in 1985 the offender was again treated there twice; once following an overdose of barbiturates and narcotics and on a second occasion after a motor accident. The hospital records record a diagnosis as at September 1985 of a personality disorder.
22 This brings me to a review of more recent assessments of those psychiatrists who have seen the offender in recent times. I referred to Dr Westmore having seen the offender in March 2006. Dr Westmore assessed the offender as being "an intelligent, articulate man". Dr Westmore was addressing the issue in March 2006 as to whether the offender was fit to be tried and as to whether there was any psychiatric defence available to the offence of murder. Dr Westmore considered the offender was fit to be tried and that he had no psychiatric defence.
23 Dr Westmore saw the offender again on 30 May 2007. I record the opinion expressed by Dr Westmore in his report of 31 May 2007:
"Mr Fleming has been convicted of the charge of murder. He continues to maintain his innocence in relation to the charge despite the findings of the court. He is very distressed, anxious, agitated and somewhat disorganised. These changes reflect a psychological condition rather than organic impairment. I think he is probably a highly intelligent man but his incarceration and the outcome of the court case has clearly disturbed him. He has been treated with an antidepressant but probably needs more aggressive treatment with medication.
I will attempt to speak to his prison doctors about that although ultimately they will make decisions about his management.
This man will find incarceration an extremely difficult experience. I note his age, his very obvious physical disability and there are I think aspects of his personality which are likely to cause him to come into conflict with other inmates and perhaps with some prison officers. It is likely he will need to be managed in protection for most if not all of his incarceration and that will further increase his sense of isolation and probably alienation. He should be considered to be an at risk prisoner because of his disability, his personality and the likely conflict that will cause with others and the nature of the conviction. His physical problems will require him to have extra medical care and it is also probable that during, for example, the periods when he is transferred between correctional centres there may be some lack of continuity in his physical and psychiatric care. This will further aggravate his various problems.
He is an at risk prisoner for many reasons and his long term incarceration will be an extremely difficult experience for him."
24 Other psychiatric assessments were made by Dr Giuffrida on 1 August 2006 and by Dr Nielssen on 29 August 2006.
25 When Dr Giuffrida saw the offender, he did so to assess his fitness to be tried. Dr Giuffrida did not consider at that time that the offender was fit to be tried because he did not regard the offender as capable to present his defence coherently or sensibly. He regarded the offender as having an extremely serious personality disorder.
26 Dr Nielssen made his assessment some four weeks after Dr Giuffrida. Again, Dr Nielssen had to consider the offender's fitness to be tried. Dr Nielssen considered that he was fit. Dr Nielssen did not consider the offender mentally ill or to have a psychiatric condition requiring treatment in a psychiatric hospital. Dr Nielssen saw medical records from Cairns Base Hospital and from South Sydney Rehabilitation Hospital compiled in 1984, and his understanding from those records was that the offender was not thought to be mentally ill when assessed in that year. Dr Nielssen concluded that the offender had a personality disorder and opiate dependence. He went on to say:
"The diagnosis of personality disorder, or a pattern of maladaptive personality traits resulting in significant distress and distress to others, is based on the accounts of Mr Fleming's reported behaviour at the time of admissions to hospital between 1972 and 1985 and his presentation at the recent interview. His personality would be best classified as having antisocial and borderline traits, from the history of conduct disorder in adolescence, adult convictions, chronic depression, extreme anger, recurrent episodes of deliberate self harm and the pattern of his behaviour whilst in hospital.
The diagnosis of opiate dependence is based on his account of longstanding treatment with abnormally high doses of potent opiate medication."
27 I determined on 14 March 2007 that the offender was fit to stand trial for reasons which I then published. I reviewed in that judgment the medical evidence available from Dr Westmore, Dr Giuffrida and Dr Nielssen. I will not repeat what I then wrote. Since the trial there has been the additional assessment by Dr Westmore in May 2007.
28 I have reviewed the medical evidence in some detail. That evidence establishes that the offender has a personality disorder in the sense explained by Dr Nielssen and recognised by Dr Westmore in his recent report. I accept that the personality disorder is likely, as Dr Westmore opines, to bring him into conflict with others in the prison system and that this will make his prison existence more difficult for him and for others.
29 So far as the offender's physical state is concerned, the offender is obviously handicapped by the amputation. He has complained of chronic back pain and of an osteoarthritic condition in his right leg. He exhibited some hearing difficulties during the proceedings in this court and he has complained of sleep disturbance. I do not have the advantage of a recent comprehensive medical assessment of his physical condition, but his physical difficulties will plainly be burdensome for him in prison, as, indeed, they would be if he was not in custody. The same might be said as to his personality disorder and the conflict with others stemming from it.
30 However, it is appropriate that I take into account the added hardship of custody for this offender with the physical and psychological problems to which I have referred.
31 A report from the General Manger of the Metropolitan Remand and Reception Centre (Exhibit E) provides some information in relation to the offender's management in custody. The report is dated 30 April 2007. It is stated in the report that since 17 June 2005 the offender has been in special management where he is currently on protection. He occupies a cell alone and has access to a wheelchair-accessible shower. The cell has an exercise yard attached to it. The reports concludes:
"If inmate Fleming is to remain on protection, he will have limited or no access to other inmates depending on his status and he will be confined in a protection facility wherein there is generally reduced access to services. Once inmate Fleming is classified after sentencing there may be an opportunity for him to reintegrate into the normal discipline within the centre. However, it may be determined that for his own safety he may need to remain on protection."
32 The matter of the offender's future management within the prison system is not a matter to be ignored. In R v Way (2004) 60 NSWLR 168 the Court of Criminal Appeal, constituted by the Chief Justice, Wood CJ at CL and Simpson J, said in relation to protection (at [176]):
"The fact of protection has been taken into account as a special circumstance in the case of such offenders, subject to the court being satisfied that the sentence will in fact be served in conditions which are more onerous - a circumstance that is no longer necessarily the case for all such offenders, in the light of the current arrangements which exist for their alternative accommodation and special management, which were considered in R v Totten, R v Durocher-Yvon (2003) 58 NSWLR 581 and R v Mostyn [2004] NSWCCA 97."
33 However, their Honours went on to refer to the judgment of Howie J in R v Mostyn [2004] NSWCCA 97:
" [177] In R v Mostyn , Howie J sounded a note of caution, with which we would respectfully agree, in relation to the manner in which the fact of protection should be taken into account, as follows:
'[179] The material raises once again the issue of what mitigation of a sentence should be made on the basis that the offender might spend all or some of his sentence in protective custody. The matter has been recently considered in R v Totten [2003] NSWCCA 207 and R v Durocher-Yvon [2003] NSWCCA 299. It can no longer be assumed that a prisoner, by reason of the fact that he will serve his sentence on protection, will find prison life more difficult or onerous than other prisoners in the general prison population or that the prisoner will be deprived of amenities or opportunities for self improvement courses and education. The present is another instance where a sentencing judge has presumably taken into account in favour of the offender the fact that he will serve his sentence under the harsh conditions and deprivations of protective custody, but that has not proved to be the case. It is an example of the difficulty of a sentencing court taking into account possible executive or administrative action in respect of a prisoner's custody when predicting how a sentence will be served. Although in R v Durocher-Yvon the court indicated that a sentencing judge was entitled to assume that an informer would find himself in strict protection for the best part, if not the whole, of his sentence, that assumption would have proved to be erroneous in the present case.