R v Dennis

Supreme Court of NSW|2018-11-12|Before: Hulme J, Mr J

Solicitors: Solicitor for Public Prosecutions Legal Aid NSW File Number(s): 2016/250801

Judgment

HIS HONOUR: Mr Howard Dennis has pleaded guilty and is to be sentenced for the murder of Ms Marion Hickey at Walgett on 19 August 2016.
Murder is a crime that has a maximum penalty under s 19A of the Crimes Act 1900 (NSW) of imprisonment for life and (in the circumstances of this case) a standard non-parole period under the Crimes (Sentencing Procedure) Act 1999 (NSW) of 20 years.
The offender has also asked that in sentencing him for this offence I take into account his guilt for an offence listed on a Form 1 document: possessing an offensive weapon with intent to assault a man and cause him actual bodily harm. That is an offence against s 33B of the Crimes Act for which there is prescribed a maximum penalty of 12 years.

Other facts pressed by the Crown

The Crown tendered a bundle of material (Exhibit B) based upon which it asked for further findings of facts pertaining to the offending to be made.
There is a statement by Mr Mervyn Dennis, the offender's brother. That statement is so bereft of detail that it does not assist.
There is a transcript of an interview by police of Ms Cynthia Fernando that was conducted about two hours after the murder. Regrettably, it gives the impression that Ms Fernando may have been under the influence of something because it is not a very coherent account and she contradicts herself on matters of important detail. I note that Ms Fernando told the police that she was an alcoholic and had been drinking. I do not think it would be safe to act upon anything in this interview.
The balance of the material in the bundle comprises summaries on the first page of some things that witnesses had said. They do not appear to materially add to the account already appearing in the agreed facts.

Accounts given by the accused as to the offending

The offender did not give evidence in the sentence proceedings. All I have in terms of a version of events as to the circumstances of the offending is what he has told the authors of some reports. Given that they are accounts that have not been given on oath or subject to cross-examination they must be considered with some circumspection.
In a report by Ms Jenny Howell, forensic psychologist, dated 23 October 2018, the offender gave the following account of his relationship with Ms Hickey and some of the circumstances pertaining to her death: "In talking of the current offence Mr Dennis became emotionally distressed and teary. He stated that he 'loved' the victim whom he had known since she was a child. He was friends with her parents and said they often spoke of her when she lived in Sydney. Mr Dennis said he and the victim formed a friendship when she returned to live in Walgett approximately a year prior to the offence. He said he loved her and wanted to form an intimate relationship with her. Mr Dennis said they regularly used drugs and drank alcohol together. In the 24 hours prior to the offence, Mr Dennis said he had consumed a large quantity of ice followed by approximately three bottles of wine immediately prior to the offence and was 'intoxicated' and 'out of it' at the time of the offence. He expressed genuine remorse for the victim saying she did not 'deserve' what happened to her. He is haunted by hearing the victim's voice and experiences 'flashbacks' of the offence which he said leads him to thoughts of suicide."
Dr Gerald Chew, forensic psychiatrist, interviewed the offender on 7 February 2017 and reported the following as to what the offender said about the offence: "Mr Dennis told me that at the time of the offences he was 'not with it' and clearly 'scattered' and intoxicated. He had drunk about 3 bottles of wine in the hours prior. He told me that he did not know that the victim was at the house he visited. He told me that he had known the victim and was infatuated with her. He told me that a few days prior to the incident she had stolen some money from him. He told me that he had seen her with another man and this made him very jealous. He said that he had 'really like[d] her' for three to four months and had wanted an intimate relationship with her. He wasn't exactly sure what was said at the time of the offence but he remembers feeling jealous and thinks that she may have made a passing comment rejecting him. He told me that he is very sorry for what he has done. He said that no one deserves that, least of all someone 'I really liked'. He told me that he thought that if he was 'straight', that is on no drugs, that he would not have done the offence. He said that he relived the offence often still in the form of flashbacks and nightmares. He said that her voice still came to him."
It should be noted that self-induced intoxication of an offender is not a mitigating factor: Crimes (Sentencing Procedure) Act, s 21A(5AA).

The offender's background and personal circumstances

Information concerning the offender's background and personal circumstances has been derived from a number of sources including a report by a Probation and Parole Officer dated 4 December 2009 and the reports by Ms Howell and Dr Chew. There is also a transcript of evidence given in the District Court by a field officer with the Aboriginal Legal Service in some sentence proceedings concerning the offender on 10 December 2009.
The offender is an indigenous man who was born in 1967 and was the eldest of five siblings, having two brothers and two sisters. He grew up on the Gingie Reserve, about 10 km out of Walgett. His parents are deceased and his younger brother died as a result of a motor vehicle accident in 2001. The offender told Ms Howell that his grandparents, aunties, uncles and cousins also lived on the Gingie Reserve or the other mission outside Walgett.
The field officer, who had been in Walgett since the early 1980s, had known the offender since the offender was aged about 15 or 16. He said the offender's father was a drinker "from time to time". He explained that the father worked on a property not far out of Walgett and whenever he was working he was a "very, very reliable person". It was when he was not working that he drank heavily. When asked if the offender's mother was a "chronic alcoholic" he responded in the negative. He said that there was a lot of alcohol-related crime in Walgett, and at the Gingie Reserve in particular, in the late 1980s to mid-1990s. He was not asked what it was like during the offender's childhood and adolescence in the 1970s and early to mid-1980s.
The offender travelled by bus to Walgett to attend school. He told Ms Howell that he enjoyed school. He had friends and he derived pleasure in playing football. After leaving school he obtained employment "on and off" as a labourer on surrounding farming properties.
The offender told Ms Howell that his parents were "heavy" drinkers and said that their alcohol consumption often led to family violence. He said, "violence" was a defining factor of his childhood and he was subjected to direct physical and verbal violence as well as living in a family context defined by violence between his parents, and towards other members of the extended family and community who lived on the mission. As a child he would often go "walkabout", saying his parents did not routinely or consistently look after him and his siblings as they were often "drunk". He complained of being "bashed" as a child and being "not well cared for" by his parents and often going hungry.
The offender has a significant criminal history which will be described in a moment but it is pertinent to note here that he told Ms Howell that when he was in Dharruk Boys' Home at Windsor he was both physically and sexually abused by staff and other older boys.
According to the 2009 Probation and Parole Officer's report, the offender (at least as at that time) had six children from two previous relationships, then aging from 4 to 23 years. I refer to this because the history obtained by Ms Howell only refers to a relationship in which two daughters were born in 1985 and 1986.
The Probation and Parole Report also includes that the offender had a history of alcohol and cannabis abuse since the age of 16. He was consuming alcohol two to three times a week "to get drunk" and would use a "stick" of cannabis every three days. Ms Howell's report includes that he was drinking alcohol "whenever he could" from the age of seven and regularly from the age of 14. He spoke to her of binge drinking across his lifespan, coupled with intravenous methylamphetamine and opiate use. He first used ice in his late twenties (about mid-1990s) and was using that drug heavily at the time of the index offence.
The offender has one prior drug and alcohol residential rehabilitation experience - an admission to Lyndon Community at Orange in 2005-6 where he remained for about three weeks.
The offender's criminal history is extensive. It commenced when he was aged 14 with the theft of a car. He was first locked up at that age when he next appeared on two charges of car theft and one of assaulting a female. From that point the criminal offending continued with a regularity only broken by periods in which he was serving prison terms. There are a variety of types of crimes but a notable frequency of violence: assaulting and resisting police; sexual assault; throwing missiles, including at police officers; assaults and assaults occasioning actual bodily harm (some as a form of domestic violence); and contravening apprehended domestic violence orders.
It is an aggravating matter that at the time of the commission of the present offence the offender was on a 12 month good behaviour bond that had been imposed on 15 January 2016 for drug possession. Making it worse, on 29 April 2016 the offender entered a 12 month suspended sentence good behaviour bond for assaulting and resisting police officers and another 12 month good behaviour bond for a further assault. The offender admits these breaches and has asked that I call him up and deal with him in respect of them. More will be said about this shortly.
Ms Howell carried out an actuarial risk assessment using the Violence Risk Scale ("VRS"). His score placed him in the "low risk category to re-offend". It is notable, however, that Ms Howell explained that the VRS "was developed using group data relating to offenders and does not relate to personal risk of any one offender". I am doubtful about giving much weight to this aspect of Ms Howell's assessment having regard to the regular commission of violent offences by the offender from 1987 until the present time. The longest gap in such offending was from 2009 to 2015 - but that was a period in which the offender was mostly in gaol. A seemingly more realistic assessment was made by a Community Corrections Officer in a report of 13 April 2016 in which it was said that there is a "high risk of re-offending". Such assessment would have to include violent re-offending given the offender's record.
Ms Howell opined that the offender's isolation from family and country and the loss of his friend (the victim) appear to have had a profound effect on his mental and physical health. She considered that incarceration was a substantial deterrence to him committing a further serious offence. She also noted: "His mental health has deteriorated since he has been in custody and he is experiencing heightened feelings of suicidality, anxiety, stress and depression associated with his circumstances. He expresses suicidal thoughts and wants to kill himself because he 'can't handle it' anymore. He regularly experiences flashbacks of the offence and hears the voice of [the] victim telling him to kill himself which cause heightened anxiety and depression."
Ms Howell considered that his "mental health has been compromised in the custodial environment" and that "his risk of suicide is high". She reported that "Mr Dennis believes he will act to take his own life".
In respect of rehabilitation, Ms Howell considered that the offender would benefit from participation in the Violent Offender Therapeutic Program and the Intensive Drug and Alcohol Treatment Program. She also considered that the Ngara Nura Program for inmates with drug and alcohol addiction problems at the Metropolitan Special Programs Centre may be suitable for him.
The report of Dr Chew contained aspects of history provided by the offender which were broadly consistent with that which he provided the authors of other reports, although it had the additional information that he was suicidal for many weeks after being charged with the present offence and did attempt suicide by way of stabbing himself. There is confirmation of this in the custodial medical files.
Dr Chew made diagnoses of Polysubstance Use Disorder - in particular alcohol, methamphetamine and opiates; Major Depressive Disorder and Post Traumatic Stress Disorder, the latter being in partial remission on treatment. He noted that there were current "quasi psychotic symptoms" but considered that they fitted better within the diagnoses just mentioned. Previously reported psychotic symptoms were in the context of amphetamine use. However, he considered that this needed ongoing monitoring and chronic psychotic illness remained a differential diagnosis.
As to the significance of the circumstances of the offender's upbringing, Ms Howell opined that "violence has been a defining factor of Mr Dennis' childhood and adult life". I accept that this background of exposure from an early age to violence and alcohol abuse is a highly relevant matter in the assessment of sentence. It is a background that has left a mark that is seen in the circumstances of the offender's adult life, including his history of criminal offending which has gone hand in hand with the chronicity of his abuse of alcohol and drugs. It has the effect that his moral culpability for his crime is reduced. But it also has the effect that more emphasis has to be given to personal deterrence and the protection of the community, particularly having regard to the nature and length of the offender's history of offending, particularly of general and domestic violent offending.

Seriousness of the offences

It is appropriate to say something briefly about my assessment of the seriousness of the offence, particularly having regard to the prescription of a standard non-parole period. I have had regard to all matters affecting the relative seriousness of the offence but, briefly, it was a killing that occurred reasonably spontaneously but involved extreme aggression. The description in the statement of facts of the offender's act of stabbing is rather bland but that is likely a result of the fact that eye-witnesses were not in a position to give a sufficiently reliable account of the detail. The description of the offender's behaviour relating to Mr Morgan and after the arrival of the police is more reliable and is indicative of a man in a highly agitated and aggressive state of mind.
The offender provided explanations for his conduct to Ms Howell and to Dr Chew. It appears that while he and Ms Hickey were friends, he was infatuated with her and this was not reciprocated. In what he told Dr Chew, it appears that he was motivated by jealousy and/or rejection.
There was the use of a weapon to inflict a single stab wound to an extremely vulnerable part of the body with death being almost instantaneous. The Crown accepts that the appropriate finding is that the offender intended to inflict grievous bodily harm rather than to kill. I acknowledge what is said in the cases that were referred to about this not necessarily reducing the gravity of the offence.
Having regard to the wide range of circumstances in which the crime of murder can be committed I am of the view that this offence falls just below the middle of the range of objective seriousness.

Family victim impact statements

Family victim impact statements were provided by Marion's mother, Debbie Hickey, and two sisters, Linda and Kirsty. Their stories tell of the tragedy that has befallen their family with the loss of their beloved daughter and sister. Sadly as well, the loss to the family includes Marion's two young boys being left without their mother. I acknowledge the presence in court of a large number of extended family and friends and pay my respects to them as well. You all have my sincerest sympathy.

The breach of bond matters

The breach of bond matters for which the offender asked to be dealt with involve a s 9 good behaviour bond imposed on 15 January 2016 for an offence of possessing a prohibited drug, as well as a s 9 good behaviour bond and a s 12 suspended sentence bond imposed on 29 April 2016. The latter s 9 bond was for an offence of assault and the s 12 bond concerned two offences of assaulting a police officer in the execution of their duty and one of resisting a police officer in the execution of the officer's duty for which sentences of imprisonment in each case of 12 months were suspended.
It was a condition of the bonds imposed on 29 April 2016 that the offender, "obey all reasonable directions for counselling, educational development or drug, including residential, rehabilitation, and alcohol rehabilitation". A similar condition applied to the earlier bond.
The provisions of the legislation do not appear to permit this Court to deal with breached bonds imposed in the Local Court. The situation is complicated by the recent amendments to the sentencing legislation too, so I do not propose to delay by discussing the detail except to say that when it was drawn to the attention of the parties the point was conceded.
The papers relating to these matters are, however, illuminating in relation to the life of the offender in the 12 months preceding the murder of Ms Hickey. It is evident that his life was one of substantial abuse of alcohol and drugs, particularly ice. The offence of possessing a prohibited drug occurred on 30 September 2015 when police came across the offender who was described as being "in a frantic state as he believed people were after him". The further description of his conduct appears to indicate he was experiencing some episode of thought disorder. The resisting and assaulting of police officers and another person occurred on 14 November 2015 when the offender was described as being drunk and under the influence of ice. Police were called because he was making a nuisance of himself and had threatened to kill his cousin. He then violently assaulted and resisted the attending officers.
A report by a Community Corrections Officer of 6 May 2016 noted that the offender had completed an assessment to enter a residential rehabilitation program and was waiting to hear the outcome. The Glen Centre rehabilitation program had indicated that no beds were available but that if the offender was successful he would be placed on a waiting list. One can only speculate about what might have occurred if the offender had entered such a program and remained in it.

Various matters relevant to the assessment of sentence

There are a number of other matters that are necessary to address in order to explain the sentence I am going to impose.
The sentence will be somewhat more than it otherwise would have been because of the offender's request that I take into account his guilt in respect of an additional offence.

Remorse

There are expressions of remorse to be found in the reports which I have considered carefully because of the fact that the offender has not given evidence. These claims are supported by the more spontaneous responses by the offender in the early stages after his arrest and also by his plea of guilty, so I am prepared to accept that he is remorseful.

Prospects of rehabilitation / unlikelihood of re-offending

Realistically I suppose, it was not contended that I should make findings favourable to the offender as to him having good prospects of rehabilitation and being unlikely to reoffend. Counsel for the offender did not place any reliance upon Ms Howell's actuarial assessment referred to earlier. I simply confirm that I have considered this issue but have found that such findings are not available on the evidence.

Utilitarian value of the plea of guilty

The offender entered his plea of guilty on 20 July 2018, 1 year 11 months after he was arrested. The procedural history included the offender applying for 15 witnesses to be called to give evidence and be cross-examined. Counsel for the offender pointed out that this application was with the consent of the Crown and that it was concerned with a limited issue. I accept that this was so but it remains the case that the benefit to the criminal justice system was delayed and thereby diluted by the offender pursuing this course in circumstances where he ultimately accepted his guilt of the offence for which he was charged.
In the ordinary course, a plea entered in the Local Court would be recognised by a 25 per cent reduction of sentence for the utilitarian value to the system of justice. However, the protracted history before the plea was entered in this case has the result that the reduction should be one of 20 per cent.

Relevance of the maximum penalty and the standard non-parole period

The maximum penalty and the standard non-parole period that are prescribed for the offence are statutory guideposts that I am obliged to bear in mind. I note, in particular, that the standard non-parole period of 20 years has been set by the legislature to represent the non-parole period for an offence in the middle of the range of seriousness when regard is had only to the objective factors affecting the relative seriousness of the offence: Crimes (Sentencing Procedure) Act, s 54A(2).
I propose to impose a sentence with a non-parole period that is less than the standard for a number of reasons but particularly because of the offender's plea of guilty and my finding as to the objective seriousness of the offence.

Purposes of sentencing

It is necessary to consider the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act. A particularly relevant consideration in this case is deterrence, not only to the offender but generally. However, the emphasis to be given to general deterrence is attenuated to a degree because of the circumstances of the offender's upbringing to which I have referred earlier. It provides some explanation for the offender's life which has been bedevilled by alcohol and substance abuse and consequential criminal offending. That does not mean that personal deterrence and community protection are not significant though.
Other aspects of sentencing that are important in this case are the need to denounce the offender's conduct and ensure he is held to account for his actions. So too is recognising the harm he has caused and ensuring that he is adequately punished.
The Crown made a point about the need for deterrence in relation to the high rate of violence against women in aboriginal communities. He cited the judgment of N Adams J in Drew v R [2016] NSWCCA 310; 264 A Crim R 1 at [85]-[90]. However, what was said by her Honour was largely concerned with violence in a domestic context in indigenous communities. This case is not in that category. Regrettably like too many other cases, this case is in the category of an extreme act of violence being committed for no rational reason by a man under the influence of alcohol and drugs, including the pernicious drug known as ice. The recent news of a Special Commission of Inquiry being established into the nature, prevalence and impact of ice, especially in regional committees, is welcome.

Special circumstances

Counsel for the offender's analysis of his client's custodial record suggests that he has spent around half of his adult life in custody, some 16 years out of the past 33 years or so. There is the prospect of him becoming institutionalised if he is not already. I have no doubt about this. I accept the submission that he will be in need of intense supervision when he is released on parole.
The sentence that I am to impose will incorporate a substantial period of time for this as the parole period. I am not persuaded to find special circumstances so that there will be an even longer parole period. In saying this, I am particularly mindful of the need for the non-parole period to reflect the minimum period in which the offender should remain in custody.

Backdating of the sentence

The offender has been in custody since the date of his arrest and so the sentence to be imposed will be backdated until then.

Crimes (High Risk Offenders) Act

It is necessary that the offender be advised of the existence of the Crimes (High Risk Offenders) Act 2006 (NSW) and the potential application to him of its provisions. I note the undertaking of the offender's solicitor to do so.

Sentence

The offender is convicted of the murder of Ms Marion Hickey at Walgett on 19 August 2016. Taking into account the offence on the Form 1, the offender is sentenced to a term of imprisonment comprising a non-parole period of 14 years and a balance of the term of the sentence of 4 years and 9 months. The sentence will date from 19 August 2016 and so the offender will become eligible for release on parole when the non-parole period expires on 18 August 2030. That is a sentence of 18 years 9 months. Without the plea of guilty it would have been one of 23½ years. I direct that a copy of the report of Ms Jenny Howell, psychologist, accompany the warrant.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 November 2018

Crimes Act 1900(NSW)ss 19A, 33B

Crimes (Sentencing Procedure) Act 1999(NSW)ss 3A, 21A(5AA), 54A(2)

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