R v DWC [2006] NSWSC 1335 | Case summary

REMARKS ON SENTENCE 1 HIS HONOUR: In this matter the offender and his victims cannot be named because to do so would identify two persons who are children. Neither their names nor any material that would identify them can be published as to do so would be a breach of s 11 of the Children (Criminal Proceedings) Act 1987. 2 On 1 August 2006 the offender was arraigned before Mr Justice James on an indictment alleging two counts of murder and two counts of attempted murder with alternative counts of maliciously inflict grievous bodily harm with intent to inflict grievous bodily harm contrary to s 33 of the Crimes Act. He pleaded guilty to each of the counts of murder and guilty to the alternative counts under s 33. The Crown accepted those pleas in full discharge of the indictment. The maximum penalty for murder is life imprisonment. There is a standard non-parole period specified of 20 years imprisonment. The offence under s 33 carries a maximum penalty of imprisonment for 25 years and a standard non-parole period of 7 years. 3 The offender also asks the Court to take into account when sentencing him for one of the counts of murder a matter on a Form 1, this being an offence of assault. 4 All of the offences arose from the same incident that occurred on 17 June 2005 in a residence in Wallsend where each of the victims was residing. In a frenzied attack with a knife the offender killed his ex-partner, KAO. aged 35, and her father, SO aged 59, and wounded her mother, DO aged 54 and her daughter, AO, aged 13. He also assaulted his son, DJO, aged 14. This is the assault on the Form 1. 5 The offender and KAO commenced a relationship while they were still at school and they began cohabitating in 1988. As a result of this relationship they had two children, AO and DJO. The relationship ended in 1994 or 1995 but the offender maintained contact with his ex partner and the children. At some stage she took out an Apprehended Violence Order against the offender and he did not see them again for a number of years. 6 At Christmas 2003 DJO indicated that he wanted to see his father and arrangements were made for him to have contact with the family. As a result the relationship between the offender and KAO recommenced and they lived together with the children in Edgeworth. However, the relationship again came to an end leaving the offender and his daughter estranged. He would refer to her as "a slut" or "a whore". KAO and the children returned to her parents' home at Wallsend. 7 Shortly after the separation the daughter AO disclosed to a friend that the offender had sexually abused her. On 12 April 2005 the police were informed of the allegation and commenced an investigation. KAO told the offender's mother about the complaint and she asked him about it. He denied the allegation but stated that someone had abused her "because of the way she acts". He wanted the child medically examined. 8 On 23 April 2005 the offender went to the Wallsend premises in the early hours of the morning wanting to speak to KAO. She refused to leave the house and the offender thereupon smashed windows of her motor vehicle that was parked at the front of the house. Police spoke to the offender about the damage and he admitted that he had caused it. He said that KAO would not return an engagement ring and he acted out of frustration with her refusal to speak to him. The offender was later charged with malicious damage and eventually fined. As a result of this incident an Apprehended Violence order was made against the offender on 27 April 2005. 9 On 10 June 2005 the offender rang the Wallsend premises and spoke to KAO's father. The offender said that KAO needed to get off drugs and accept that her daughter had been raped. He referred to both mother and child as "lying sluts". As a result of this call KAO sought to have the Apprehended Violence Order varied to include the daughter as a person in need of protection. The matter was listed for hearing in the Local Court on 22 June. 10 On 12 June 2005 the offender's mother delivered some property to the Wallsend residence at the offender's request. Included in the parcel was a video owned by AO with the word "slut" written on it. There was also a note in which the offender made disparaging remarks about the mother and daughter. The police were contacted and advised that the variation of the Apprehended Violence Order should proceed. 11 On 16 June 2005 the offender and his housemate went to a local bowling club where each had four glasses of beer. They returned home and ate dinner. They then watched television until about 11.30 before the housemate retired to bed. The offender had consumed no more alcohol after leaving the club. According to the housemate he showed no signs of anger or distress and did not talk about the family on this particular night. However the previous night he had mentioned that he was under investigation regarding the allegation made by AO but emphatically denied it. 12 Late that evening the offender left his home and walked the nine kilometres to the premises at Wallsend. He took with him a kitchen knife and a pair of canvass gardening gloves. He gained entry to the premises through the garage after lifting the roller door. All the occupants were asleep. KAO was on a fold down bed in the living room. Her parents were in the main bedroom and each of the children in separate rooms. DO has a vague recollection of seeing the offender with the knife and at one stage he was leaning over his daughter. She was thrashing her legs in an endeavour to get away and KAO was trying to push him away. DO told DJO to call the police. She was at some point in time stabbed and made her way to the front of the house where she collapsed. She was found there when police arrived. 13 DJO's account was that he was awoken by the offender yelling, "You're all going to pay". He saw his mother, his sister and the offender, who was armed with a knife, in the hall. The offender stabbed KAO and then chased AO. He caught her in a bedroom and was leaning over her stabbing at her. DJO assisted his mother to pull the offender away. He told his father to calm down but he said, "No … no". The offender was wearing gardening gloves. His mother grabbed at the offender but he pushed her onto a bed. DJO attempted to push his father away but the offender swung the knife at him. The offender was yelling at AO, "It's all your fault". DJO asked his father why he had stabbed SO and he said, "Grandad tried to stick his nose in where it doesn't belong". 14 AO's account is similar to that of her brother. She said that the offender chased her and her mother into the bedroom. The offender stabbed her while she was on the ground saying to her, "You started all this". She tried to grab the knife from her father but received cuts to the hands. 15 While DJO was outside the house trying to summon assistance, the offender left the premises. He threw away the knife and gardening gloves in a neighbouring yard. There was also found nearby a sharpening tool similar to one that had been seen previously in the offender's possession but he denied that he taken it with him. He also discarded a pair of socks and a jacket that were bloodstained. Apparently he had removed his shoes before entering the house. The offender was arrested at about 1.15am walking in Wallsend, and told police, "I am the bloke you're looking for". He was asked where the knife and gloves were and replied, "In the front yard I was going to gaol anyway". 16 The offender entered into a lengthy interview with police that morning. He was asked to tell what happened. The offender referred to the video that he had sent to his daughter and the fact that it was being taken to the police because of the Apprehended Violence Order against him. He then said:

He admitted that he was angry with KAO for breaking up with him, and angry with AO for making allegations against him and for lying. However he said that he did not intend to attack anyone until KAO would not speak to him over the allegations. He maintained that, if she had spoken to him, nothing would have happened. 21 As a result of this incident KAO and her father both died from multiple stab wounds to the torso. DO suffered stab wounds to the arm and chest and a wound to the abdomen eviscerated her bowel. She underwent a laparotomy at the John Hunter Hospital that morning. She was discharged on 30 June 2005 and apparently her wounds have healed well. Although the wounding was serious, it is not expected that she will have long-term physical complications. However, she has been suffering from depression, she is extremely tired and in constant pain. AO suffered multiple stab wounds to both legs, her neck and torso. There was a surgical incision made to insert a chest drain. As a result she has been receiving therapy for scar management. 22 I am not satisfied that when the offender left his premises that he went to Wallsend intending to kill KAO. However, he would have known that it was unlikely in the extreme that his ex partner would speak to him given what had occurred on the last occasion he tried and the existence of the Apprehended Violence Order. He took the knife with him because he intended to use it in the event that KAO did not do what he wanted and he must have known that there was a real likelihood that he would use the knife on her. Given the nature of the knife and the fact that he took the gloves, he must have foreseen that it was likely that he would end up killing her. It was to that extent a conditional intention to kill his wife but the condition was very likely to be fulfilled. Such was his determination to have it out with her that he walked for almost an hour without reconsidering what he was doing. 23 I have no doubt that he was very angry with his daughter because he was blaming her to a very great extent for his troubles at that time. He believed that he faced a real prospect of going to gaol because of the allegations but wanted to have one last chance to persuade KAO to his way of thinking: that the child had been sexually abused by someone but it was not him. But once it was clear that the immediate reaction of KAO was to seek help rather than to listen to him, he formed the intent to kill her. He then quite coldly put on the gloves so he could carry out the killing. At this stage anybody who came between him and the victim or tried to interfere was also subject to his uncontrollable anger. There is in my view no doubt that at that time he was motivated by revenge for what he saw was the unjustified slur upon him by AO aided by her mother. 24 I am not prepared to find that the accused intended to kill the father. The Crown has accepted a plea of guilty to a s 33 offence in respect of DO on the basis of an intention to inflict grievous bodily harm rather than an intent to kill and I do not believe that there was any different intention in relation to SO. It may have been different in respect of the attack upon AO but in light of the plea accepted by the Crown I sentence the offender on the basis that the only intention to kill was held in respect of KAO. 25 In my opinion the most serious offence was that in respect of KAO because of the intention to kill and the deliberation in which he pursued that intention once formed. There are a number of aggravating factors. The offence was committed in the home where she was living and in which she was entitled to believe she was safe. It was in breach of an order of a court designed to protect her from the offender. The offender was prepared to seriously injure any person who sought to protect her to the extent of killing her father and seriously wounding her mother. It was purely fortuitous that DO survived and that DJO was not hurt. The attack upon AO was to punish her and she was fortunate not to be more seriously injured. Still it seems that, his fury spent, the offender ceased his attack and left the premises. 26 There are victim impact statements in relation to DO, and the children AO and DJO prepared by a psychologist. To the extent that those statements are concerned with the loss and effect of the two deaths I cannot take them into account by way of aggravation of the offence, except to the extent that the children have been deprived of the love and care of their mother and grandfather. But to the extent that they reflect a reaction to the assaults upon themselves and the actions of the offender that they witnessed they are admissible as evidencing the serious impact of the offender's conduct upon their physical and mental welfare and their enjoyment of life. It is not surprising that they have each been traumatised. DO is suffering both physical and mental disabilities that will probably stay with her throughout her life. AO has also suffered severe psychological damage that has left her very fragile and vulnerable in her teenage years. She will have physical scars that will always remind her of what occurred. DJO is suffering from unresolved grief and anger and feels that he has lost both his parents as a result of what happened. 27 The Crown has submitted that in respect of the killing of KAO a life sentence should be imposed by application of s 61(1) of the Crimes (Sentencing Procedure) Act. The Crown in particular submits that the killing can be described as heinous in that it occurred in the presence of the children and that before she died she would have witnessed life-threatening attacks upon her daughter and both parents. 28 The offender was born in 1969 and has just turned 35 years. He has only one previous matter in his record being the damaging of KAO's motor vehicle in April last year for which he was fined $300. I sentence him on the basis that, apart from occasional acts of anger and aggression in what has been described as a volatile relationship with KAO and the use of cannabis over a long period he is generally of good character. He accepted the first separation and made no attempt to molest or interfere with his ex partner over a period of almost seven years. There was some previous threat that he would kill her and the daughter, but I doubt that it was seriously meant or seriously taken by KAO. The extent of the violence displayed on this occasion and the use of a weapon are uncharacteristic of him. He did apparently at about the time of the incident have anger management problems exacerbated by his use of cannabis and was obsessed about his daughter's complaints. He was seen by a local doctor and referred for counselling but did not take up the opportunity. 29 The offender's mother gave evidence before me. The offender's background is unremarkable. He has generally been in employment in manual occupations and is regarded as a hard worker. The only matter of note is his persistent use of cannabis. She gave evidence of the relationship between her son and KAO. She had never witnessed any problems between them and the offender appeared to take their initial separation philosophically. At one stage, after they were reunited, they became engaged to each other. However the relationship deteriorated in Christmas 2004 and by April the offender had become very angry with KAO especially when she would not return the engagement ring. The offender had been using Zoloft at this time but his mother advised him to stop because she believed it was making him too angry. 30 The offender was examined by two psychiatrists both of whom gave evidence before me. He gave Dr Nielssen an account of having developed a significant alcohol problem after first separating from KAO. He gave up drinking when they were reunited. However, when he learned that AO had made allegations against him, he commencing drinking again and was using cannabis in order to calm himself up until three weeks before the killing. He told the psychiatrist that he loved KAO and had no other relationship after they separated. The only matter of significance revealed by the psychiatrist's examination was that the offender exhibited features consistent with alcohol related brain damage "including disorganised and inflexible thinking, a loss of emotional reactivity and problem solving ability". 31 A psychologist, Dr Pulman, also examined the offender. He told him that he believed that his partner had been lying to him about the reasons that AO had slit her wrists and even suspected that his son was molesting her. He said they split up because he was asking too many questions about AO. The offender told Dr Pulman that on the night of the killings he had consumed too much alcohol and had been watching a film in which a character had committed suicide after being sexually assaulted. Testing of the offender revealed that he had no substantial impairment of intellectual skills but that his verbal and visual skills were well below the level to be expected from his IQ scores. It was thought that his history of heavy alcohol consumption may have contributed to his reduced level of emotional reactivity. 32 Dr Neilssen believed that the results obtained by Dr Pulman were consistent with his clinical assessment that the offender had some impairment in memory and executive function as a result of his history of alcohol abuse. In evidence before me Dr Neilssen expressed the view that the offender was displaying evidence of early alcohol related brain injury that may have impaired his frontal lobe processes such as impulse control and judgment. He thought that this may in some way have caused him to react with such violence. The offender may also be more inflexible in his thinking. Dr Neilssen did not believe that the offender displayed an anti-social personality or other conduct disorder. He did not think that the offender presented as a particular future risk and that the significant aspects of his personality, the depression and alcohol and drug abuse, could be treated by counselling and rehabilitation. 33 The Crown led evidence from a psychiatrist Dr Allnutt. He examined the offender and his report does not differ in any significant aspect from that of Dr Neilssen. Dr Allnutt found nothing to suggest any major disorder but did note that on neuropsychological testing he had a minor impairment in his verbal and visual memory skills likely to be related to his substance abuse. There was nothing in the offender's background of any significance. Dr Allnutt undertook a risk analysis of the offender. In determining that analysis he took into account that the offence was impulsive and triggered by a movie that mirrored issues that were pre-occupying his thoughts at the time. The offender's mental state was characterised by feelings of rage and may have been disinhibited by alcohol. After considering the various factors described as strengths or weakness relating to future dangerousness, Dr Allnutt believed that the offender fell into "a group of offenders who are a moderate-high risk of future interpersonal violent behaviour in the context of intimate relationships and moderate-low outside of the context in the absence of rehabilitation". 34 Dr Allnutt gave evidence before me. He did not believe that the offender suffered from frontal lobe damage although he could not discount the possibility. He thought that many of the indicators of the offender being a future risk of displaying violent conduct could be addressed by treatment such as drug and alcohol counselling and management of his interpersonal skills and anger. They were dynamic risk factors: those that could be changed. Dr Allnutt thought that the prognosis was positive. He recognised that some of the risk indicators could decrease over time. 35 I do not consider that the offender presents such a risk of future offending of a serious kind that the issue of public protection arises. I accept that on the present state of the law it is unnecessary that I be satisfied of dangerousness beyond reasonable doubt. Even if the offender were not sentenced to life imprisonment, a finite sentence appropriate to reflect the total criminality involved and the relevant standard non-parole period taken as guidepost notwithstanding the pleas of guilty will result in a very lengthy period before the offender will be eligible for release. The parole board would no doubt take into account what rehabilitative steps the offender has taken to address the matters of concern before approving his release. I do not believe that his prospects of rehabilitation are negligible although I could not make a positive finding that they are good. It simply depends upon what the offender does during his time in custody and the effects of the passing of time. 36 One of the issues that arises in the present case is the fact that there are two deaths and two very serious wounding charges. I do not believe that the murder of KAO was itself sufficiently serious to come within s 61 of the Crimes (Sentencing Procedure) Act. It does not seem to me to have that heinous nature that is required before the offence must be seen to fall within the worst category. It has been stated that the test to be satisfied before the section applies is a substantial one and it has not been met here. This is notwithstanding that I accept the horrific situation in which KAO would have met her death, fearing for the safety of her children and parents. The offender was in a highly emotional and irrational state on this particular evening, no doubt due to the obsessiveness of the thoughts about the allegations made against him. Many of his statements made at that time have to be seen in this light. It is also relevant in this regard that I am not persuaded that the offender should be regarded as a likely danger to the community on his release although I accept that such a determination is not decisive on this issue. 37 The question arises whether I can impose a life sentence to reflect the totality of the criminality before me notwithstanding that I do not believe that any one of the offences warrants a life sentence. This issue was recently addressed in the Court of Criminal Appeal: see Aslett v R [2006] NSWCCA 360. In that case it was held that it was wrong to increase the sentence for an offence beyond that which was proportional to its criminality for some other reason, for example the protection of the community. In the major judgment of the Court McClelland CJ at CL stated that he had some difficulty in reconciling the decision in R v Harris (2000) 50 NSWLR 409, which permitted a sentence of life sentence to be imposed to reflect the totality of the criminality in multiple offences, with the principle of proportionality confirmed in R v McNaughton [2006] NSWCCA 242. 38 It is unnecessary for present purposes to try to reconcile any inconsistency in approach that there might be in relation to the imposition of a life sentence for multiple offences. However, I am willing to accept that there may be cases where a court is entitled to impose a life sentence for multiple offences of murder notwithstanding that any offence taken alone would not warrant such a sentence. That situation would arise where the criminality of the offending taken as a whole results in the heinousness that might be missing in relation to a single offence considered in isolation. The simple fact that the offender has already killed at the time of the later killing might permit a court to impose a life sentence for the later offence even though it might not have done so if the offence had stood alone. For example the court might refuse to mitigate the sentence of life imprisonment that was otherwise justified by the objective seriousness of the offence notwithstanding that matters in mitigation might arise. 39 However that might be the present facts do not in my opinion require the imposition of a life sentence in order to reflect the total criminality. I have already indicated that the intent to kill only existed in relation to KAO. The other offences were inflicted in carrying out that killing in a frenzied attack by reason of his all-consuming anger at the time. I do not think that the offences occurred in the calculated way that the Crown's written submissions suggest: simply eliminating obstacles in his way to furthering his attack upon the deceased. The present does not seem to me to be a similar case to that of Harris notwithstanding the proximity of the other offences. The total criminality does not have present the heinousness that was evident in R v Villa [2005] NSWCCA 4. 40 That being said the offences were of the utmost seriousness taken individually and looking at the criminality as a whole. All of the offences were aggravated by the use of a knife, there was a degree of planning at least on a conditional basis, and the impact of the offences on the remaining members of the family was substantial. The offences were committed in breach of an apprehended violence order, the attacks occurred in the residence of the victims, at night and when they were hardly in a position to be able to defend themselves from a determined knife-wheeling assailant. Although the degree of violence and particularly the use of a weapon was out of character, the relationship was not entirely free of violence. However the offence is not aggravated by that fact. 41 There is little to mitigate the objective seriousness of the offences. There is some evidence that the offender might have been affected by a brain injury that resulted in his extreme anger and loss of control. But I do not think this is a highly significant factor in the events of the night. Similarly, although the events may have been triggered by the film he saw, it was always highly likely that there was going to be a violent episode in light of the build up of the offender's obsession with the daughter's allegations and the blame he attributed to both the daughter and her mother. General deterrence is a very significant consideration in the present case as it is in all cases of domestic violence and I do not believe that the psychiatric evidence warrants any significant mitigation of that factor or of the sentences generally. 42 On an objective consideration of the murder of KAO the offence falls well within the upper seriousness of offences of its kind and above the midrange of seriousness. There is the mitigation of the plea of guilty which would reduce this sentence by about 15 per cent. There is no other significant mitigating factor. The murder of SO is below the midrange of seriousness. It was impulsive in that it occurred during his attempts to kill KAO and it was not the primary objective of going to the house or even contemplated by him. It was not committed with intent to kill. The offence against AO is above the midrange of seriousness notwithstanding that the injuries were not life threatening. The attack upon her was intended to punish her for causing his difficulties by reason of the allegations she made and her injuries are permanent. The offence against DO was also above midrange by reason of the serious nature of the injuries inflicted and their effect upon the victim. In each case a discount of 15 per cent is appropriate. There must be a degree of accumulation of sentences in order to reflect the totality of the criminality involved. The particular periods of custody referable to a particular offence by way of cumulation of sentences does not reflect the sentence that would have been imposed had the offences stood alone. The form 1 matter is not of such seriousness that it adds to the total criminality for the killing of KAO. 43 There are in my opinion no special circumstances to reduce the non-parole period except by reason of the accumulation of sentences. There will be an ample period for the offender's rehabilitation as a result of the application of the statutory relationship between the overall non-parole period and the balance of term. 44 For the offence of inflicting grievous bodily harm with intent against AO you are sentenced to a non-parole period of 7½ years with a balance of term of 2½ years to commence on 18 June 2005. The non-parole period is to expire on 17 December 2012. 45 For the offence of inflicting grievous bodily harm with intent against DO you are sentenced to a non-parole period of 7½ years with a balance of term of 2½ years to commence on 18 June 2007. The non-parole period is to expire on 17 December 2014. 46 For the murder of SO you are sentenced to a non-parole period of 14½ years to commence on 18 June 2009 with a balance of term of 4½ years. The non-parole period is to expire on 17 December 2023. 47 For the murder of KAO and taking into account the matter on the Form 1, you are sentenced to a non-parole period of 21 years with a balance of term of 8 years to commence on 18 June 2014. The non-parole period is to expire on 17 June 2035. The total term is to expire on 17 June 2043. 48 It is my intention that the offender be sentenced to an overall non-parole period of 30 years to date from 18 June 2005 and is eligible for consideration for release to parole on 17 June 2035. There is a balance of sentence to be served of 8 years from that date. **********

R v DWC

At a glance

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Judgment (17 paragraphs)

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Cases Cited (4)