R v DL

• 13 - IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

1 HULME J: Shortly before 4.00pm on 19 July 2005 Tania Burgess, aged 15, alighted from a bus which had carried her part of the way home from school. Using a short cut, she commenced to walk through the car park of the Forresters Beach Resort with a view to walking to her home a little distance beyond. In the car park she was attacked by the Prisoner who with a knife which, although it has not been found, appears to have been short, stabbed her something of the order of 48 times. 2 The wounds were concentrated in the areas of the top of her back, top of her head, face and upper chest. One penetrated two chambers of her heart and from this wound and the loss of blood flowing from the totality of wounds she very shortly thereafter died. 3 Evidence in the case suggests that the attack on the deceased occupied but a few moments ceasing when a guest at the resort, whose attention was attracted by noise emanating from the attack arrived on the scene, saw a girl lying on her back on the ground with a boy sitting on her, punching or stabbing, and demanded that the assailant stop. The assailant then ran off. 4 Later that day the Prisoner attended at the home of a woman living some little distance away, asking for a bandaid. Observing that the Prisoner had in fact suffered a substantial cut to the flesh of his hand, she gave him a tea towel to staunch the blood. When on the Prisoner's return home his mother saw the cut, she took the Prisoner to a nearby doctor where his hand was sutured. To these people the Prisoner explained variously that he had fallen over a rock, cut his hand on a rose bush and cut it on barbed wire. The largest of the lacerations was some 5 to 6 cm long and up to 1 cm deep, albeit that measurement is to be understood as at an oblique angle to the skin. The cut has the hallmarks of being inflicted by a knife, rather than in circumstances such as the Prisoner described. 5 At about 6.25 that evening police attended on the Prisoner's home. Shortly after the police knocked at the front door the Prisoner was observed to leave the house via the back door and move down the side of the house where he was arrested. Some items of blood-stained clothing were seized and in due course DNA analysis revealed that they contained DNA of both the Prisoner and the Deceased. 6 When arraigned, the Prisoner pleaded not guilty but on 27 March last a jury convicted him. He has been in custody since his arrest. 7 There is scant evidence that might explain the killing. The prisoner declined to be interviewed by police, gave no evidence at his trial or during the sentencing proceedings and to the author of the pre-sentence report and psychiatrists who have interviewed him either denied any involvement in Tania's death or claimed to have no memory of it. 8 At the time of the offence the Prisoner was aged 16 having been born in May 1989. He has no other convictions and was described by a number of witnesses during the trial and whose evidence I accept as shy, quiet, family oriented, and someone who wouldn't hurt an ant. 9 It should be mentioned that although the Prisoner's mother thought he went to school on the morning of 19 July, he did not in fact so attend at all. He returned home at about 12.15, saying to his mother that he had suffered from some stomach pains and had left school early. He left home again at about 3.30 saying to his mother that he was going to Forresters Beach to look at the trail bikes. Statements to the psychiatrists that I accept indicate that the Prisoner on a number of other occasions has missed school. 10 Evidence that I accept from school friends who were accustomed to travel on the same school bus as Tania and the Prisoner was to the effect that there was no relationship between them beyond the fact that both participated in some teasing carried on between boys and girls on the bus. The 19 July was the first day back at school after holidays but there was no evidence that the Prisoner had attempted to pursue or make contact with the Deceased during that period. 11 A Mr McDonald who was incarcerated with the Prisoner for some time in the Kariong Detention Centre gave evidence that the Prisoner had talked to him about what had occurred. Mr McDonald said that the Prisoner had given 3 accounts on 3 different days. The first account was that the Prisoner had seen a young female getting stabbed and attacked, the Prisoner walked over and tried to stop the attack, a witness on a balcony called out, and the assailant sliced the Prisoner's hand with the knife and took off. 12 The second account was to the effect that the Prisoner stabbed a girl, jumped over a putt-putt golf fence and in that activity sliced his hand, that the Prisoner threw the knife over the putt-putt golf fence and that the girl, who went to the same school, had rejected him. The third account was that the Prisoner was waiting behind some bushes, the victim got off the bus and the Prisoner stabbed her, only stopping because the knife cut his hand. 13 Although the evidence is not as clear as it might be, and questions arise whether fences might have precluded convenient hiding in bushes, photographs indicate that there were some bushes or trees adjacent to the Deceased's likely path between the bus stop and where she was stabbed. 14 Mr McDonald's reliability and credibility suffer from his past. He gave evidence that when he was about 4 his father commenced to give him alcohol, marijuana and amphetamines and by the age of 16 he was using about 3 grams of speed a day. He went into custody at age 16 and since then was diagnosed with a drug induced psychosis and paranoid schizophrenia and has had problems with his memory although he maintained that at the time of trial it was all right. While in custody he had also had a fight with the Prisoner and at one stage with another prisoner was planning to bash the Prisoner. 15 Mr McDonald did assert that the reason he came to court was because he had a sister the same age as the Deceased and that he had nothing to gain from attending but his evidence certainly raises the question whether his first reporting on the Prisoner was with a view to serving Mr McDonald's own ends. He was then seeking to be placed on protection. 16 The Crown contended that I should find that the Prisoner's offence was "at the very high end of objective seriousness", "frenzied … full of hate and rage", involving a specific intention to kill and "a very clear element of premeditation and planning and knowledge of the habits of Tania Burgess and the timings of her buses and her way home". 17 That the Prisoner knew of the timing of the buses and the stop at which Tania alighted is clearly shown. I accept also evidence to the effect that in about May 2005 the Prisoner had himself alighted on 2 occasions at that same stop. I do not feel able to reach any conclusion as to the reason for this. 18 The nature of the attack clearly demonstrates that at the time the Prisoner was in a frenzy but the other findings sought by the Crown are much more doubtful. Certainly the evidence is consistent with the attack being premeditated but before I can make findings adverse to the Prisoner on matters of aggravation I must be satisfied of them beyond reasonable doubt. And on any view there was much irrationality about what occurred. 19 Given the problems with Mr McDonald's reliability and credibility to which I have referred, I am not disposed to make findings solely on the basis of his evidence and, not being persuaded that the attack itself provides evidence of the Deceased having slighted or rejected the Prisoner, there is no persuasive evidence that that occurred or of any other conceivably rational explanation for the attack. 20 The Crown Prosecutor submitted that the Prisoner's presence at the scene bespoke premeditation as did his truanting from school. I do not regard either of these matters as arguing positively for the conclusion that the Crown prosecutor seeks to have drawn. Clearly, if he was not at home at 4 o/clock in the afternoon the Prisoner had to be somewhere and while there seems to have been no reason for the Prisoner to have been at the Motel, there was no evidence to suggest that there was no reason, legitimate when judged by the standards of a teenager with time on his hands, for the Prisoner to have been in the general area. 21 The Crown Prosecutor relied on the fact that the Prisoner had a knife on him. However, there is no evidence on the issue of whether the Prisoner was accustomed to carry one or of why he had it on this occasion. The knife was never found and all one knows about it is that it was a short one. 22 Furthermore, while undoubtedly the Prisoner met Tania on the afternoon of 19 July and it is possible that he set out to do so, the evidence does not justify the conclusion that this was his intention. 23 In the immediately preceding discussion, I have thought it appropriate, at least in large part, to deal individually with the more significant matters that seem to me to bear on the issue of premeditation. Of course those matters have also to be considered in totality but even on that basis, I am unable to conclude to the high standard of beyond reasonable doubt that the Prisoner's attack on the Deceased had any degree of premeditation about it. 24 Arguing also against any such conclusion is the extent of irrationality in the attack. Premeditation requires some degree of reasoning in the person premeditating. The nature and circumstances of the attack suggests that, at least at that time, reasoning was almost non-existent. 25 I have so far left out of consideration the psychiatric evidence that was tendered and called on sentence. The sources of this were 3 experienced psychiatrists, Dr Allnutt and Dr Nielssen who were engaged for forensic purposes and Dr Kasinathan who assessed the Prisoner on the day after the offence and, in consequence of being engaged by the Juvenile Justice Department has seen the Prisoner 20 or 30 times since. All 3 had had access to a great deal of information concerning the Prisoner. There do not seem to be any significant differences in that regard and accordingly it is not necessary that I extend these remarks by many pages for the purposes of detailing that information. 26 The first of these witnesses called was Dr Allnutt. His conclusion was that the Prisoner suffered from "depressive and anxiety symptoms. Probably with obsessive compulsive symptoms, of obsessive compulsive disorder". In Dr Allnutt's view, although the evidence raised a question whether the Prisoner had a psychotic illness, the evidence was not sufficient to enable a conclusion that the Prisoner suffered from a psychosis. Dr Allnutt said that there might well be a connection or causative link between the Prisoner's anxiety disorder and his offence, but was unable to conclude that there was. When the doctor saw the Prisoner shortly before the sentencing hearing on 1 August last he observed no signs of mental illness. 27 Asked how one explained an attack of the frenzied nature that there was by someone who, until then seemed to have had 16 fairly normal years, Dr Allnutt said that he did not know and probably would not know until the Prisoner provided an explanation but advanced as possible explanations a psychosis, an interaction with the Deceased that went wrong, a loss of control and temper. He said that there seemed to be a lot of anger and rage in the offence, and while not thinking that that was diagnostic of a psychosis, could not rule the latter possibility out. He said that the Prisoner was highly disturbed at the time of the offence and there might be another non-psychotic but irrational reason for it. The murder could also have been the result of some sexual intent or an offence, I infer a lesser one, gone wrong 28 Asked for a prognosis, Dr Allnutt said that studies showed that some people do have one episode of psychosis and never another although there remained a risk that there would be a repeat. The doctor could not assess the degree of risk in the Prisoner's case although adding later:- "If one looks at the risk factors that are more likely to be associated with recidivism in the future, he manifests few of those and based on that you would place him in a low risk of future violence." 29 Dr Kasinathan thought that the Prisoner's presentation on the day following his offence was strange and that the Prisoner's thought form on that occasion did not seem normal. Dr Kasinathan went on to say that that was the only occasion when he noticed any abnormalities. The doctor said that he agreed with Dr Allnutt's diagnosis of an anxiety disorder with depression, adding that he could not seen any logical connection between the Prisoner's anxiety symptoms and the offence. Later Dr Kasinathan agreed that the Prisoner's affect generally was somewhat restricted and, while this could be a sign of schizophrenia, thought that this was more probably an autistic trait. Dr Kasinathan drew attention to the fact that while incarcerated, the Prisoner was under regular observation and many people had observed no psychosis. 30 The doctor explained that term as a mental condition characterised by losing touch with reality commonly evidenced by perceptual disturbances or thought disorder. 31 Dr Kasinathan said he could find no psychiatric explanation for the attack on Tania Burgess. He postulated the possibility that it might have been an overly explosive reaction to a slight, itself amplified by anxiety that the Prisoner may have had at the time. The doctor went on to say that the Prisoner's risks in the future would be reduced if he continued on anti-anxiety medication but otherwise was unable to make a prediction. 32 Dr Nielssen's view was that the Prisoner at the time of his offence had been, and still was, in the prodromal phase of schizophrenia, which the doctor explained as "the phase of the illness between the decline in social function and the emergence of frank psychiatric symptoms, usually only apparent in retrospect when acute symptoms are evident". He acknowledged that the illness had not developed as he would have expected in the period since the offence and that a trial of medication for schizophrenia seemed to have no effect but nevertheless adhered to his view. In coming to his conclusion, Dr Nielssen was influenced by, inter alia, the Prisoner's mother's account of the Prisoner having declined in scholastic performance and social function prior to the offence, a family history of mental illness, by what the doctor described as a striking abnormality of emotional expression in 2 face-to-face interviews and what he detected to be a subtle impairment in logical thinking. Dr Nielssen opined that at the time of the offence the Prisoner had had a brief psychotic episode as part of the early course of schizophrenia. 33 The doctor went on to say that the Prisoner's future depended on treatment but that schizophrenia was a very treatable condition. He also observed that most of the serious violence by persons with schizophrenia occurs prior to their initial diagnosis and that the risk of homicide of people with psychotic illnesses after a period of treatment is back close to the community level. 34 Dr Nielssen said that he did not think that Dr Allnutt's opinion that the Prisoner suffered from a anxiety disorder perhaps with depressive features adequately reflected all of the circumstances of the case albeit he agreed that that opinion reflected the main clinical problem at the present. 35 Under cross-examination, Dr Nielssen accepted that hatred or anger for Tania Burgess were possible explanations for the attack but said that the extreme and disproportionate actions of the Prisoner did argue for some gross disturbance in the capacity of self control or emotional regularity. 36 Each of these 3 psychiatrists has a degree of experience and expertise that must make a non-psychiatrist pause before disagreeing with him. There is nothing in the reports or evidence in chief of any one of the 3 to cause me to prefer the opinion of one rather than another. None was shaken from his opinion during the course of cross-examination, nor did any of the cross-examination cause me to have more doubts about the evidence of one rather than another. 37 However, in making any judgment it is necessary to bring into account the circumstances of the offence. Dr Kasinathan postulated the possibility that they were an overly explosive reaction to a slight, itself amplified by anxiety but I find it impossible to regard this as an adequate description. The Crown Prosecutor suggested the attack was a demonstration of hatred and rage but the absence of any evidence of, or that could give cause for, hatred leads me to view this description as also inadequate as an account of what occurred. As I said to the Crown Prosecutor during the course of submissions, if the attack occurred without premeditation it was irrational; if it occurred with premeditation, the premeditation was irrational. 38 There is nothing in the Prisoner's past to suggest that he was prone to rages or the like. His actions were so far out of the normal, even were he a slighted lover (and there is no suggestion that he answered that description), that I find it impossible to avoid the conclusion that, to use a colloquialism, something must have snapped. While I do not do so with any confidence, if I have to choose between the competing psychiatric opinions that of Dr Nielssen seems to me to best explain or accord with what occurred and it also seems to me more probable than a simple, if extreme, overreaction to some conduct of Tania. In short, I think it probable that the Prisoner was acting under the influence of some psychosis at the time of the murder. 39 Against this background I turn to the various statutory provisions to which I must have particular regard. Although the Prisoner was a juvenile at the time of the offence he must be dealt with according to law - Children (Criminal Proceedings Act, s17). Pursuant to s19A of the Crimes Act, the offence of murder carries a maximum sentence of imprisonment for life. Pursuant to s54A et seq. of the Crimes (Sentencing Procedure) Act, there is a standard non-parole period of 25 years where the victim was under 18 at the time, those statutory provisions requiring a court to impose that penalty for an offence in the middle of the range of objective seriousness unless the court determines that there are reasons, falling within the terms of s21A of that Act, for setting a longer or shorter non-parole period.

40 A determination of an appropriate sentence, particularly in light of s54A et seq. requires a court to make a decision as to the relative seriousness of the offence under consideration. Although to a layman, conscious of the fact that in the case of all murders, the victim will have been killed, the task may seem odd, it is nevertheless required. No longer does the law require that all murderers be executed or sentenced to prison for life and even when this last mentioned punishment was obligatory, most were released at some time by a decree of the Executive. And both the annals of the Court and my own experience reveal that some murder offences are objectively more serious than others. 41 Although not all bear on the objective seriousness of an offence, subject to the section's terms, I am also required to have regard to such of the aggravating and mitigating factors referred to in s21A of the Crimes (Sentencing Procedure) Act as are relevant. I do not regard it as necessary to progress through the numerous paragraphs in that provision seriatim or to refer to matters that are elements of the Prisoner's offence or integral to it. 42 Sub-sections 2(b), (c), (f), (g), (ib) and (m) referring to the use of violence, a weapon, gratuitous cruelty, substantial harm, grave risk of death and a series of criminal acts are relevant although I do not think reference to them adds to the criminality necessarily involved in the Prisoner's offence. I do not regard the youth of the victim as making her vulnerable within the terms of subsection 2(l) but, even if that view be wrong, care needs to be taken that there is no double counting of that factor, given that the standard non-parol period for most murders is 20 years. 43 Among the mitigating circumstances in s21A(3) are "(b) the offence was not part of a planned or organised criminal activity". In the circumstances here I regard that fact of no mitigating weight. Rather would I have regarded the contrary situation as aggravating. The Prisoner had no prior convictions and was of good character, a matter referred to in s21A(3)(f). 44 Paragraphs (g), (h) and (j) refer to offenders unlikely to re-offend, offenders having good prospects of rehabilitation, and offenders not fully aware of the consequences of their actions because of their age or any disability. The fact that on the evidence the Prisoner seems to have been a normal well behaved boy prior to 19 July 2005 argues in his favour in relation to the first 2 of these matters. In the case of the first, Dr Allnutt's evidence does not argue to the contrary and Dr Nielssen's argues in the Prisoner's favour at least if the Prisoner is, and is willing to be, properly treated. However, while I think that the proper conclusion on the evidence is that the Prisoner is unlikely to re-offend, the uncertainties apparent in the evidence of the psychiatrists makes me unwilling to find that the Prisoner's prospects of rehabilitation are good. 45 I am also not prepared to make a positive finding in the Prisoner's favour on the issue of whether he was, at the time of his offence, not fully aware of the consequences of his actions because of his age or any disability. (My emphasis). On the one hand, he could not have been unaware. On the other, it is virtually impossible to believe that, if conscious of what he was doing and the obvious consequences, he could have proceeded to inflict 48 wounds. 46 Similar considerations bear on the issue of whether the Prisoner intended to kill the Deceased, as distinct from merely inflicting grievous bodily harm. (The jury's decision to convict the Prisoner carries with it the implication that he had one of these intentions.) However on this issue the onus lies on the Crown and proof must be beyond reasonable doubt. Because of my view as to his mental state at the time, I am not satisfied to that standard that the Prisoner's intention was to kill. 47 I am required to form a conclusion as to where, in the range of objective seriousness, the Prisoner's offence falls. The ferocity and persistence of the attack argues for a conclusion that his offence was well above the midrange. So would the age of Tania was not that already reflected in the standard non-parole period. 48 On the other hand, my unwillingness to find that the offence was premeditated and my failure to find that the Prisoner's intention was to kill argue for the offence being below the midrange. So, substantially, does my conclusion concerning the psychiatric evidence. 49 What weight does one give to these various factors? Precision is impossible and minds will inevitably differ but in the result my conclusion is that the offence is a little below the mid-range. 50 Relevant to the determination of the proper sentence are also subjective factors. I have referred to some of these. Another of more weight is the Prisoner's youth. As I have indicated, he was 16 at the time of the offence and longstanding authority recognises that considerations of general deterrence and some of the other purposes of sentencing are to be given less weight in the case of such persons - see R v GDP (1991) 53 A Crim R 112 at 116; R v Hearne (2001) A Crim R 451 at 459. Similar considerations apply where some mental disability has played a part in the commission of an offence (although to the extent to which that is taken into account in an assessment of the objective seriousness of an offence, a court must take care to avoid double counting). 51 The Prisoner's age, the fact that this is his first time in prison, his nature and circumstances prior to the offence and my conclusions as to the psychiatric evidence also constitute special circumstances and, subject to the following remarks, justify an interference with the normal ratio of non-parole and parole period. However, against the statutory provision of a non-parole period of 25 years, I do not feel able to reduce the non-parole period below 17 years and see no point in a further term exceeding 5 years. 52 I sentence the Prisoner to imprisonment consisting of a non-parole period of 17 years commencing on 19 July 2005 and a further period of 5 years commencing on 19 July 2022. 53 I record as the date upon which it appears to the Court that the Prisoner shall be eligible for parole is 19 July 2022 54 I direct that, until he turns 21, the Prisoner's sentence be served as a juvenile offender.

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