R v DS

District Court of NSW|2014-02-14

Introduction 1PC (born November 1964) married EC in November 1999. They separated in February 2008. There are 3 children from the marriage. On 20 December 2009 EC contacted authorities and informed them that their youngest daughter had made a disclosure to her about being sexually assaulted by PC. A JIRT investigator and DOCS (now FACS) recorded the complaint as "not substantiated". The parties continued to share overnight care of the children. There was continued animosity between PC and EC. 2The offender, DS (born June 1969), commenced a relationship with EC in 2010. The Offender accepted EC's assertions that her children were the subject of abuse. He shared her animosity to PC. On the evening of 21 February 2012 he formulated a plan to kill PC. He put that plan into effect the following day. 3A number of references were made by the offender to the 'Magellan List' or the 'Project Magellan Report'. This, I understand, is a program in the Family Court to fast track matters involving serious allegations of child abuse. It is the mechanism for testing such allegations and informing the Court of matters relevant to such allegations: see Exhibit 4. I accept that a misunderstanding of the nature of the report may have played on the mind of the offender but its existence in no way reflects upon the victim, PC. To the contrary it effectively exonerates him. It is an agreed fact that in April 2013 the Family Court delivered a judgment that concluded, that PC did not sexually abuse his daughter in 2009, and, that he posed no unacceptable risk to the children.

Agreed Facts 4On the evening of Tuesday 21 February 2012 the Offender and EC were alone together and had discussions about PC, matters involving the children and family law proceedings. The children were at PC's residence overnight in accordance with the parenting arrangements. 5That night, the offender placed a jerry can of petrol, a newspaper and a large kitchen knife (measuring approximately 30cm) in his motor vehicle. At about 7.15am on 22 February 2012 the offender drove a white Holden Commodore to a semi rural area on the outskirts of Sydney. Shortly before 9am he went to a nearby 'before and after' school care centre. He spoke to childcare worker and confirmed that the children were in fact dropped directly at school on Wednesday mornings. The offender drove to the school to wait for PC to arrive. 6At approximately 9am PC arrived at the school with the children. Having seen him, the offender drove away from the school towards the intersection of two major roads close to the childcare centre to wait. At this time landscapers Christopher Atwood, Jarrod Fiez and Rhys Patterson were working on the western embankment, approximately 50m north of the intersection. The vehicle remained at the intersection with the motor running for approximately 5 minutes. 7Shortly after, PC drove his red Toyota Aurion sedan toward the intersection. The offender observed PC approaching and commenced driving his motor vehicle towards the intersection timing for a collision. PC slowed and stopped his vehicle at the intersection. The offender continued towards PC's vehicle, accelerating as hard as he could. He gathered speed and drove directly into the driver's side door of PC's motor vehicle. 8The offender grabbed the knife from within his vehicle and ran to PC's vehicle yelling: "you fucking bastard". He cut through the airbag and stabbed him in the head above his right eye. PC said: "mate don't do it. Don't do it to yourself, D. Stop it mate". PC attempted to escape. The offender stabbed him again a number of times. 9Seeing the offender attacking PC, Christopher Attwood and Jarrod Fiez ran towards him. Attwood placed his arms around the offender from behind and attempted to pull him off PC. Attwood saw he had a knife and let go of the offender. At this time a witness heard the offender repeatedly yelling things like: "He's a fucking dog; he's a paedophile" and something about "white stuff comes out of daddy's penis". 10The offender backed out of the vehicle and threw the knife onto the road. Attwood attempted to calm the offender - the offender responded: "No, I meant to hit him, I was trying to kill the cunt". The offender moved to a grassed area with Christopher Attwood. The offender yelled out: "I can't kill ya, my father's killed people before, I'll get someone else to do it, you're a fucking dead cunt."

An interview with Police 11The offender was taken to Liverpool Police Station where he participated in an electronic record of interview. In that interview he made full and frank admissions to attempting to kill PC. 12He told police that he had planned to kill PC the night before. "Í timed it so I could crash directly into his driver's side window in an attempt to kill him. ... I had a jerry can of fuel that I was going to pour over him and set on fire once I had stabbed him." "I know he has a spinal injury, I hoped to do a spinal injury or kill him." "I could have finished him then but it's not in, it wasn't in me to keep stabbing him." 13His answers to police questions included the following responses: "how can I keep sending her back when he might kill them..." "I have to defend them" "I've been through two years of continual seeing the progress ... they're in imminent danger, what happens, [when] we have to send them back." "All I'm doing is worrying about these children and I know I'll destroy everything " "As I say, M's behaviour, I believe L, I believe L a hundred percent. I've read the documents; I've seen her ... M has been my main concern". "This creature will kill them ... Fuck that. Kill him and not take the chance that he'll kill the children ... " "That is why I'm saying I'm convinced of they were in danger and what I did" "I hope he dies, and I don't regret it and I will do my time ... I've hurt the children and L, but they will be in a better place without him, as bad as that is."

The Victim's injuries 14PC suffered four stab wounds in the attack; one above his right eye, two to his upper left arm and a wound to the chest region that injured the right ventrals of his heart. He was discharged after 7 days in hospital. Of his injuries, Dr Carpio stated: "I am of the opinion that his injury, mainly the stab wound to the heart, was serious and life threatening". 15PC made a Victim Impact Statement to the court, which I have received and considered: exhibit B. He spoke of how he had been forced to confront his mortality. He notes his continuing stress and fears and the impact of the crime on his capacity to work. He is concerned that rumours, not real facts, relating to the offender's motivation, still circulate in the community. He emphasised that the crime had had a significant impact on the children, not just on him. He said psychological scars would remain.

Other evidence 16The offender gave evidence on 7 February 2014. He said he had spoken to Dr Furst, a consultant forensic psychiatrist, and given him a frank and true history. He accepted responsibility for his crime and showed some empathy for his victim. He too expressed concern for the impact of his crime on the children. He accepts and recognises that at the end of the day his crime achieved nothing positive but caused considerable harm and, "made things worse." 17In custody he said has been using his time well by working and studying. He said he would continue to attempt to better himself and make a contribution to the community on release. He is the third of four children from a large extended Aboriginal family from western Sydney. His father was very strict but he lived in the Philippines. The offender adopted a responsible role in the family while young. As a young adult he lived with his older sister on the mid north coast, helping with her children. He also spent some time with his father in the Philippines. He has had a number of responsible work positions with Australian Customs and in Media and Film. Until shortly before this offence, he was working with the disabled and elderly. At times he has battled with mental illness, and on occasions he has been hospitalised and medicated. His first manic episode was in 2001; the most recent in 2010. 18His relationship with EC started in 2010. He took a role in raising and caring for her three children. The stressors brought about by his illness and consequent concerns for the children led him to resign from a job where he cared for Down 's syndrome and profoundly autistic people. 19While regretting his crime and its consequences on all concerned he showed no real remorse or insight. He told me he still believes PC is a risk to his children, despite all the evidence to the contrary. 20The offender has been in custody on remand for two years. In that time has seen a psychiatrist only once. The offender has not been prescribed any medication for his mental illness. This is disturbing, given Dr Furst's diagnosis and recommendations. Lack of treatment and medication may account for his continuing false beliefs about PC. 21The offender accepts that he can never have contact with the C family again. He has not had gaol visits from them for many months. He has solid long term plans and strong family support: exhibit 2. He accepts he will have to take medication for the rest of his life and that this requirement should be reinforced by a formal Community Treatment Order as recommended by Dr Furst. 22His sister DC gave evidence. She is a woman of impressive achievements. I accept she will provide a home for her brother on his eventual release and will robustly encourage him to seek and maintain the treatment he needs. 23Dr Furst provided a comprehensive report to the court: exhibit 1. On 25 October 2013, via telephone link to Campbelltown District Court, he was examined and cross-examined. Dr Furst affirmed a diagnosis of bi-polar affective disorder. He said DS could, and did, function quite well between manic episodes, but his illness did impact on his capacity for executive functioning; matters such as judgment, planning, thinking clearly, and making sound decisions. His illness made him less able to process information and made his beliefs more intense. In Dr Furst's opinion it was more likely than not, his bi-polar affective disorder made him more worried, more emotional, and affected his capacity for sound reflection and decision making. 24Dr Furst believed that the offender acted in an excessive and criminal way because his judgment was disturbed: "It is possible his bipolar disorder made him more likely to believe his partner's children were in danger and had been molested by the victim. ... The bipolar disorder...may have made him more intense in his belief, if you like, or added to the emotional intensity, but the beliefs were held more because of the events reported to him ...": Transcript, 25 October 2103, pages 5 & 6. 25He noted that the offender's impairment appeared constant over the 12 hour period from when the plan was conceived and when it was acted on. He said the offender acted on what he observed and what he'd been told and on his concerns about lack of action to, as he saw it, "protect the children". He was aware of what he was doing, its seriousness, and the consequences. His illness impacted on him in that he thought at the time he had to act. The lack of medication and stress may have links to deficits in cognitive processes and reasoning. Dr Furst said that his problem was poor and disturbed judgment; a problem, which in his opinion was directly relevant to the offender's mental illness. 26While agreeing with the Crown suggestion this was 'not an impulsive crime', Dr Furst accepted the offender could exercise self control. He noted, "the concern I have is that maybe he came to the conclusion this was the only action to take because his initial judgment was somewhat disturbed and the bipolar effective illness had an impact on that.": at transcript page 10 27In terms of future risk, Dr Furst emphasised that the offender must continue to take his medication and said if he does he'll be less likely to re-offend. He needs to be monitored closely in gaol and in the community and if non-compliant with medication he may need to be subject to a Community Treatment Order. 28While he could not make a scientific prediction Dr Furst's opinion was, "there was a low level of risk of re-offending if his mental illness was given assertive treatment": exhibit 1 page 14. Absolute risk would be "relatively low...given the safeguards and him now being in custody and the fact that this action is now known and he has expressed remorse, in my view": Transcript pages 19 & 20. 29Dr Furst's report carefully addressed a series of important questions relating to the offender, his mental condition at the time, and his prognosis. He reviewed the available medical records noting in them a history of severe mood disturbance that required three admissions to hospital in 2001 and 2002 and a further admission in 2010. He said the Offender's history was consistent with him having experienced recurrent manic episodes, depression and psychotic symptoms when acutely unwell. This pattern and his family history of affective mental illness, is consistent with a diagnosis of bipolar affective disorder. Bipolar Affective Disorder is a mood disorder characterised by one or more episodes of abnormally elevated energy levels and mood, cognitive disturbance, and one or more depressive episodes. 30He noted that the available history suggests that at the time of the offence the Offender was highly stressed and anxious about the welfare of his partner's three children. In particular their being sexually abused or killed by PC. However, Dr Furst noted it is possible that his bi-polar disorder made him more likely to believe his partner's children were in danger and had been molested by PC but there was no evidence that the offender was acutely manic, severely depressed, or psychotic at the time of the commission of the alleged offences. 31He concluded that the Offender has a serious mental illness and that his underlying bi-polar affective disorder may well have affected his judgment and contributed to the high levels of anxiety he was apparently experiencing at the time of the offences. In the Doctor's opinion the offender is at risk of further relapses in the event that he stops his medication or experiences significant stress. He recommended a treatment plan involving:

Care by a psychiatrist and mental health nurses
Mood-stabilising and/or antipsychotic medication
Referral to a clinical psychologist working for the Department of Corrective Services.
Treatment under the care of specialist drug and alcohol services at Justice Health
Vocational rehabilitation options should be explored
Assertive community mental health treatment upon his release from custody.

Counsel's Submissions 32Mr Crown noted, as appeared to be freely accepted by the offender, that his belief PC abused his children was still deeply entrenched. So entrenched, said the Crown, that there was a real concern that his promise, 'he will sever all ties and not intervene again on release', will not be kept. He noted the need for a strong and principled response to anyone seeking to take the law into their own hands by using such violence, relying on the passage from R v Mitchell [2007] NSWCCA 296, "a grievance with another, whether justified or not, cannot be a licence to commit crime..." . He submitted that the motive proffered was of limited mitigating value; rather, he submitted, the offender's motive aggravated the offence. 33In relation to Dr Furst's opinions, Mr Crown submitted that the offender's mental illness should not be my primary concern; rather I should focus on general and specific deterrence and protection of the community. He accepted the offender's mental illness played a part in the commission of the crime but only a 'limited part'. He drew my attention to the planning that went into the crime and its continuation with two weapons, a car and a knife. He noted the agreed facts describe an offence involving a high degree of violence; the offence was sustained and had a number of discrete aspects to it; the initial ramming of the car, two episodes of stabbing and the later threats. There was a grave risk PC would be killed and his injuries were serious and life threatening. Mr Crown urged a finding that objectively the offence fell within the upper range of objective seriousness. 34Mr Wilson, public defender, spoke to his comprehensive written submissions: MFI 1. From the outset he conceded that this is was a serious example of a s 27 Crimes Act offence because of the degree of planning and the seriousness of the attempt to kill. But there were, he said, other objective factors, notably the offender's motive and voluntary cessation of the assault, which put it in the middle or below the middle of the range of objective seriousness. As to motive he drew parallels with cases such as R v Swan [2006] NSWCCA 47, where the intellectual capacity of the offender was a relevant factor in mitigation and R v PRFN [2000] NSWCCA 230, where a misguided concept of self defence was accepted as something that could be taken into account. He sought to distinguish this case from vigilante type crimes. Significant reliance was properly put on the various aspects of the offender's mental illness. 35Mr Wilson took me to the strong subjective case for the offender. He asked I find there was genuine remorse and that there were good prospects for rehabilitation and a low risk of reoffending. He took me to aspects of the offender's background, his sister's evidence and his prior good character supporting these propositions 36The Crown and Mr Wilson referred me to Judicial Commission statistics and a number of cases including, Quealey v R [2010] NSWCCA 116, R v PRFN, R v Swan and R v Mitchell . What was done and said by other courts on other occasions in relation to other offences and offenders can provide a useful guide to a sentencing judge but care is required. I must exercise my individual discretion taking account of the facts here, the nature of this offence and this offender. My concern must not be with some notional mathematical consistency but rather the consistent application of principle: see Simpson J. in DPP (CTH) v De La Rosa [2010] NSWCCA 194, cited with approval in Hili v The Queen [2010] HCA 45.

Consideration 37An important guide to the exercise of my sentencing discretion is the maximum penalty of 25 years and the standard non-parole period of 10 years. Both reflect the obvious seriousness of crimes such as this. Both must be taken into account in determining the appropriate sentence. 38The standard non-parole period fixed by Parliament represents an offence in the middle of the range of seriousness taking into account only the objective factors affecting the relative seriousness of that offence. Parliament has chosen not to define 'objective factors'. The new s 54B(2) Crimes (Sentencing Procedure) Act, at least in part, reflects the statement of the High Court in Muldrock [2011] HCA 39, at [27]: "... The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending." 39The High Court did not regard Muldrock's mental condition as part of the statutory concept of objective seriousness. The court preferred a minimalist approach to the concept. Section 54A(2) Crimes (Sentencing Procedure) Act recognises this by the use of the expression "only the objective factors". It is not necessary to recite the case law to date on the subject. The debate is recorded in an informative article by Justice RA Hulme "Significant criminal appellate decisions in 2013" (2013) 25 Judicial Officers' Bulletin 89 and in the Sentencing Bench Book at [7-970]. It will no doubt be the subject of authoritative guidance from the Court of Criminal Appeal. I note however that whether a matter is categorized as an objective or subjective factor may have little practical impact on the ultimate sentence: Williams v R [2012] NSWCCA 172 at [43]. Here I do not propose to take into account motive or mental illness in my assessment of the objective seriousness of the offence but they remain highly relevant to my ultimate synthesis of all the matters I must take into account. 40Ultimately while I find that objectively the admitted and proven objective facts of this matter put it above the middle of the range of objective seriousness there are reasons here for a shorter non-parole period than 10 years. Those factors include: (a)The early plea of guilty, which requires a reduction of 25 % of the otherwise appropriate sentence to reflect its utilitarian value (b)The subjective matters, including those noted in s 21A(3) Crimes (Sentencing Procedure) Act, now raised. I note that, in its terms, s 21A (3) (j) Crimes (Sentencing Procedure) Act does not apply but the common law in relation to how mental illness is taken into account, does. (c)My finding of special circumstances, and the subsequent requirement that the offender spend a significant part of his sentence in the community where his rehabilitation can be supervised and managed.

Objective seriousness 41The maximum penalty of 25 years and SNPP of 10 years reflect the obvious seriousness of crimes such as this. Measures of objective seriousness for such crimes fall within two categories: (1)The circumstances of the crime, and (2)The extent and nature of PC's injuries. 42As to the circumstances there was clear planning, if unsophisticated. The plan was carried out with determination and involved a number of significant violent acts - the collision and the stabbings - both involved weapons - a car and a knife. The injuries inflicted were serious. The stab wound to the heart particularly so. PC was lucky to survive. While immediately life threatening he survived, scarred but with little ongoing, physical injury. His psychological injury however, will endure for some time. 43Moderating the objective seriousness was the offender not continuing his assault and backing out of his victim's car. This voluntary desisting occurred only after bystanders had intervened and significant injuries had been inflicted. Even after he had broken off the attack, the offender continued to abuse and threaten his victim. PC survived the attack and has made a good physical recovery but his survival and physical recovery were a result of good luck, good medicine and the brave and timely intervention of Christopher Attwood and Jarrod Fiez. 44These matters put the crimes' objective seriousness above the middle range. That finding does not determine the sentence. As the CCA said in R v Way [2004] NSWCCA 131, a court does not fix on the standard non-parole period and oscillate around it. The finding about objective seriousness is one of many matters that goes toward the ultimate sentence and the standard non-parole period of 10 years is one of many guides to the exercise of my sentencing discretion.

Motive 45There are a number of features of this case, which call for moderation of penalty. One is the utilitarian value of the plea of guilty; another is the impact of the offender's mental illness. Mr Wilson also raised motive as a factor, which could reduce the offender's moral culpability. As with many aspects of sentencing, factors relevant to moral culpability here point in different directions; not all can be reconciled. 46The offender's motivation, I accept, was not revenge or summary judgment but a misguided and disturbed act committed to protect three children from abuse or possible death. Given that motive, the offender, in his own mind, acted not in his own interests but those of the children. He was prepared to sacrifice PC and his own liberty to that end. While ostensibly 'noble' the logic behind it was twisted and I find significantly influenced by his mental illness. It helps explain, but could never excuse his actions. He acted knowing he would spend a considerable amount of time in gaol as a consequence. The risk of an inevitable harsh penalty did not deter him. 47That said nothing should be done by a court to condone or give tacit approval to anyone who violently seeks to take the law into his or her own hands. No grievance, no fear can ever become a licence to commit crime. There were alternatives and even in his confused mental state the offender was aware of them. While the context was different the High Court recently reinforced, that "one of the historical functions of the criminal law has been to discourage victims and their friends from resorting to self help ...": Munda v W A [2013] HCA 38 at [54].

Mental Illness 48Principles to be applied when sentencing an offender suffering from a mental illness, intellectual handicap or other mental problem were succinctly summarised by McClellan CJ at CL in DPP v De La Rosa at [177]. Omitting citations they are: "● Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence. ● It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence, which would otherwise have been imposed. ● It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person, the length of the prison term or the conditions under which it is served may be reduced. ● It may reduce or eliminate the significance of specific deterrence. ● Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence."

Purposes of sentencing 49In the circumstances here any assessment of moral culpability is complex. The offender's crime objectively involved the planned and determined effort to take another's life; a crime of great moral culpability. His motive, while twisted, was to protect his partner's children. His actions did not, and could not, have protected them, rather, harm was inevitable. His long term and un-medicated mental illness affected his judgment and contributed to the high levels of anxiety he was experiencing at the time of the offence. His bipolar disorder made him more likely to believe his partner's children were in danger. I doubt this offence would have occurred but for his illness. Consequently there is less need to denounce the crime. A proper understanding of the impact of his illness on him means this sentence should be approached with a level of understanding and it should not be used as a vehicle for general deterrence. 50That said, there must still be recognition of the harm done and there is a clear need for denunciation of his crime and a proper element of retribution, "a notion that reflects the community's expectation that the offender will suffer punishment and that particular offences will merit severe punishment": Ryan v The Queen (2001) 206 CLR 267, McHugh J at [46]. In addition, specific deterrence still has relevance here. While the offender now accepts the consequences of his actions he must retain, on release, the incentive to keep to the promises given in evidence to the court, his family and his victim. 51Often the sentence imposed is one indicator of the seriousness with which the court views the crime committed, but a court must take into account, and balance, all other relevant considerations. This means a direct correlation between harm done and time served is impossible. A victim should never equate or measure their injury with the punishment actually inflicted. 52A court must also act where possible to protect the community. This involves more than simply incapacitating the offender by locking him up for a long time. He must be released into the community on serving his sentence and, if possible, after serving the minimum term. I find he must be kept in detention for the offence. If Dr Furst's management plan is put in place the risk of future offending is low and his prospects for successful re-integration into the community high. I am however, far from confident all the resources the Offender needs can be made available to him in custody. He should not be detained simply for the purpose of treatment but he will not, and cannot, be released to parole until, and unless, the State Parole Authority are satisfied his release is appropriate in the public interest: s135 Crimes (Administration of Sentences) Act 1999. If properly managed and supported in the community he should not pose a danger. 53The offender's eventual rehabilitation and return to the community must also be considered. He has used his time in custody well. I am confident he will continue to do so. He has in the past made a contribution to the community through his work for others. I am sure he will do so again. His need for supervision, assistance and help in adapting to normal community life after a long term in custody, all provide a sound basis for a finding of special circumstances: s 44(2) Crimes (Sentencing Procedure) Act.

Conclusion and sentence 54Not every matter urged on a judge has to be, or can be, fitted into categories. Human behaviour and characteristics are too varied for that, particularly where the offender suffers from a long term mental illness, which at the time of the offence was untreated. The sentencing exercise involves "a synthesis of competing features which attempts to translate the complexity of the human condition and human behaviour to the mathematics of units of punishment usually expressed in time or money": Weininger v The Queen (2003) 212 CLR 629. The purposes of sentencing do not all point in the one direction. While a compelling case has been made for the offender he must still serve a significant penalty as the serious nature of his crime and harm done to his victim must be recognised. 55I note my finding of special circumstances and the 25% reduction of the otherwise appropriate sentence to take into account the utilitarian aspects of the plea of guilty. I confirm a conviction has been entered. The sentence will date from 22 February 2012 when the offender first went into custody.

Sentence 56Taking into account a finding of special circumstances, you are convicted and sentenced to a term of imprisonment of 10 years 6 months, consisting of a non parole period of 6 years 6 months, to commence on 22 February 2012 and expire on 21 August 2018. 57You will be eligible for consideration for release to parole on 21 August 2018 to serve the balance of term of 4 years, to commence on 22 August 2018 and expire on 21 August 2022, subject to the supervision and guidance of the Community Services NSW for as long as they deem necessary.

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: 10 March 2014

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