R v Fernando

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

1 HIS HONOUR: On 22 September 1999 the prisoner, Vester Allan Fernando, stabbed to death his cousin, Brendan Fernando. At the time of the stabbing the prisoner and the deceased were each serving a life sentence for murder at the Lithgow Correctional Centre. 2 The prisoner pleaded guilty in the Local Court to a charge of murdering his cousin and was committed for sentence to this Court under the provisions of s 51A of the Justices Act 1902. In order to expedite the matter, an indictment containing one count of murder was presented to this Court on 8 December 2000 and on his arraignment the prisoner pleaded guilty to that charge. The matter was stood over for sentence and came before me for hearing on 1 February 2001. 3 On that date the Crown tendered a statement of facts and a number of witness statements without objection from Mr Nicholson SC who appeared for the prisoner. Mr Nicholson tendered a statement of a witness and that was the close of the evidence. During the course of submissions by Mr Nicholson, it became clear that he was contending that I should impose a determinate sentence upon the prisoner which sentence would be served concurrently with the life sentence which the prisoner was serving at the time of the murder. When I indicated that I was concerned at the lack of any material relating to the personal circumstances of the prisoner in evidence before me, Mr Nicholson sought an adjournment so that such material might be obtained. 4 The Crown indicated that it accepted that it was within my discretion to impose a determinate sentence in this matter and, therefore, did not oppose the adjournment. I indicated that on the next occasion either party could place any further material before me and I would then hear the balance of Mr Nicholson's submissions and any submissions on behalf of the Crown. 5 The material initially placed before me relevant to the circumstances of the offence was contained in the statements tendered by the Crown. The statement of facts is in accordance with that material and there is no dispute about them. Therefore, the facts upon which the prisoner is to be sentenced can be briefly stated. 6 On 21 August 1997 the prisoner and the deceased were both sentenced by Abadee J to life imprisonment for the murder of a nurse, Sandra Hoare, on 9 December 1994. The prisoner was also sentenced to 10 years penal servitude in respect of an offence of aggravated sexual assault inflicted upon the same victim. An appeal against conviction and sentence was dismissed by the Court of Criminal Appeal. At the time of the stabbing an application for leave to appeal to the High Court was pending. That application was subsequently refused. 7 At some time in May 1999, the prisoner was transferred from Goulburn Correctional Centre to Lithgow Correctional Centre. The deceased was at the time being held in custody at Lithgow. The prisoner was placed into segregation in that gaol because an alert had been placed on his prison file to the effect that the prisoner and his cousin should not be allowed physical contact in prison. 8 However, each prisoner made representations to the Governor of the gaol that they should be allowed to associate with each other. The deceased signed a statement indicating that he had no concerns or problems with associating with the prisoner. On 4 July 1999 the prisoner signed an acknowledgment that he was being released from segregation on certain conditions, one of which was as follows:- "That I will not cause, attempt to cause, or have caused, any injury to any other inmate. That I have no problems or grievance with any other inmate at Lithgow Correctional Centre." 9 The prisoner also acknowledged in the document that he might be returned to segregation if he breached any of the conditions or if any of his actions gave cause for concern in relation to security or discipline in the gaol. 10 As a result of inquiries conducted by the prison authorities and steps taken to ensure that there was no legitimate basis for preventing the prisoner and his cousin from being in a position to associate if they wished to do so, the alert was removed and the prisoner was transferred from segregation. 11 At about 1.30 pm on the day of the stabbing the deceased was with other prisoners in an auditorium in the education block of the prison complex. A music teacher at the prison, Steven Hall, was with a number of prisoners operating a music computer when the prisoner and another inmate named Priestly entered the auditorium. Priestly attracted Mr Hall's attention by asking him to help him find some chords on a guitar. While Mr Hall talked to Priestly, the prisoner sat alongside them. Mr Hall noticed the prisoner was concealing something with his right hand down by his side. Mr Hall assumed it was a cigarette as smoking was prohibited in the auditorium. 12 Mr Hall got up and moved towards the music room at the far end of the auditorium because he could hear someone playing drums. He looked through the window of the room and saw it was the deceased. Mr Hall walked back to the computer area. 13 About two minutes later Mr Hall noticed the deceased coming from the music room with his face covered in blood. The deceased was heading towards the door of the auditorium with the prisoner following him. The prisoner was carrying in his right hand what Mr Hall described as a "shiv" and which appeared to be one side of a pair of scissors with a plastic handle. 14 The deceased went up to the officers' station at the entry of the auditorium and bashed on the window. He said he needed help and then collapsed. As Prison Officer Stewart opened the door of the officers' station to enter the auditorium, Priestly and the prisoner ran past him through the open door. 15 Officer Stewart attempted to assist the deceased who was bleeding from the face and chest. The clinic sister from the gaol attended to the deceased who was breathing but was non-responsive to verbal stimuli. The deceased ceased breathing and the sister commenced CPR. However, the deceased failed to respond and died shortly thereafter. 16 The autopsy of the deceased found that the direct cause of death was a stab wound to the chest. The deceased's body bore numerous stab wounds to the head, neck, trunk and upper limbs. There were seven stab wounds to the face, two of which were superficial. There were three stab wounds to the chest. One of these wounds was inflicted in the left breast, measured 145 millimetres in depth and penetrated the deceased's heart. This was obviously the wound which caused the death of the deceased. One other wound was 50 millimetres in depth and inflicted above the right breast. The third wound was superficial. There were four stab wounds to the left arm, one of which penetrated through the deceased's forearm just below the elbow. There were a number of abrasions over the deceased's body. 17 On 24 September the police sought to interview the prisoner about the stabbing but he declined to take part in an interview. He was then charged with the murder of his cousin. As I have already indicated he pleaded guilty to that charge both before the magistrate and on arraignment in this Court. 18 Those are the objective facts upon which I was initially required to sentence the prisoner. On those facts I knew nothing about the motive of the prisoner to attack his cousin. However, I was prepared to find that it was a premeditated act, as the prisoner had obviously armed himself before he went into the auditorium. The object, which the prisoner was concealing from Mr Hall, was the weapon he used to stab his cousin. Further, I would have been prepared, having regard to the number of wounds and all the circumstances of the matter, to find beyond reasonable doubt that the prisoner went to the auditorium intending to kill his cousin. 19 However, it has proved to be unnecessary for me to make those findings based only on inferences arising from the evidence in the Crown's case. On the adjourned hearing date the Crown tendered a pre-sentence report in which there is a section entitled "Attitude to offence". Although initially Mr Nicholson objected to the tender of this report, that objection was ultimately withdrawn subject to the deletion of some parts of that report in which the officer expressed opinions or related what she had been told by persons other than the prisoner. There was no objection to the part of the report in which the officer relates what she said she was told by the prisoner about the commission of the offence. 20 That part of the report relating to the circumstances in which the prisoner stabbed his cousin is as follows:- "Despite the fact that Mr Fernando and the victim had throughout their lives enjoyed a close brotherly relationship, the offender described no hesitation in ending his cousin's life in a premeditated act. He claimed that his offending was spurred by anger built up over a one week period following a revelation made by his cousin which, Mr Fernando claimed, he did not subsequently discuss or clarify. He considers that the death of the victim "justifies his (the offender's) sentence", in that the victim is responsible for "taking" his life, that is, the life sentence he is serving, and now his (the victim's) life is gone. (The revelation was related to the conviction for murder for which the offender is presently serving a life sentence and for which the victim was his co-offender.) Mr Fernando stated that he does not regret his actions with regard to his current offending." 21 The prisoner did not give evidence before me, but I was told by Mr Nicholson that the "revelation" referred to in that paragraph relates to the information, which was conveyed to the prisoner by the deceased, that an affidavit had been prepared in connection with an application for special leave to appeal to the High Court which was then pending in which his cousin stated that the prisoner was not involved in the murder of Ms Hoare. I was also informed that the significance of this revelation to the prisoner was that part of the evidence at the trial before Abadee J comprised prior statements made by the cousin to police implicating the prisoner in the death of Ms Hoare. Although these statements were not admitted against the prisoner, apparently he believed that they were significant in his conviction for the murder in respect of which he maintains his innocence. 22 It will generally be a matter of serious aggravation if an offence is committed as an act of reprisal against a witness or some other person involved in the administration of criminal justice. General deterrence would be a matter of particular importance in such a case. The court's role in endeavouring to protect persons who participate in an investigation and conviction of criminals extends to co-offenders who provide police with information or assistance. 23 But the present case has some unusual features. It does not appear that the prisoner killed the deceased simply because he held him responsible for giving false information to police which led to his conviction. The killing did not occur until some two months after the prisoner was released from segregation and there is no suggestion that there was any ill feeling between the prisoner and his cousin after the prisoner's entry into the general prison population and before the stabbing. Although the attack upon his cousin was a breach of the undertakings given by the prisoner for his release from segregation, and to some minor extent that is an aggravating feature of the offence, I do not believe that he sought his release from segregation so that he might harm the deceased. It appears that until the "revelation" the prisoner had come to terms with the situation, at least superficially. 24 Although it may be the case that the prisoner's conduct was spurred on by anger and resentment triggered off by the "revelation", the fact remains that the prisoner determined to kill his cousin because he blamed him for his conviction for murder and hence the life sentence imposed upon him. Even if there had been some reasonable foundation for this belief, it would have provided little or no mitigation for his conduct. In effect, it was an act of retribution for what the prisoner perceived were false accusations made by the deceased in his own defence. 25 The offence is aggravated by the fact that the prisoner was serving a life sentence at the time of the stabbing. Persons who have been deprived of their liberty by the criminal justice system are put into a much more vulnerable position than other members of the public. The rigours of prison life undoubtedly give rise to tensions between prisoners that are more likely to result in violence than would be the case outside the prison environment. Therefore, general deterrence is a matter of substantial significance when sentencing for offences of violence committed by inmates of correctional facilities: Regina v Kamotu, Johnson and Siaa (CCA(NSW), 24 August 1995, unreported); George and Price (1981) 4 A Crim R 12. 26 There was some debate before me as to the relevance of the fact that the prisoner was serving a sentence for murder at the time of the stabbing. Mr Nicholson submitted that this fact was largely irrelevant. He argued that, as the earlier murder occurred in 1994 and as the facts and circumstances surrounding that matter were completely different from the offence before me, the principles enunciated by the High Court in Veen v The Queen(No 2) (1988) 164CLR 465 at 477 were inapplicable. It was submitted that I could not on the material before me conclude that the prisoner was a danger to society generally or to other prisoners in particular or that the present offence should be considered as a manifestation of "a continuing attitude of disobedience of the law." In effect Mr Nicholson's submission was that the only relevance of the earlier conviction for murder was that the present offence could not be considered to be an aberration on the part of the prisoner or an isolated act of violence. 27 I believe that the earlier conviction for murder has more significance than that for which Mr Nicholson contends. The High Court in Veen (No 2) indicated that an offender's prior record may be relevant insofar as it reflected upon the moral culpability of the offender for the offence for which sentence was to be passed. In my view it has that relevance in the present case. The prisoner had been sentenced to life imprisonment for the murder committed in 1994. He must have appreciated, from the imposition of that sentence and the remarks made by Abadee J when imposing it, not only the enormity of what he had done to Ms Hoare, but also the importance which the criminal law attributes to the sanctity of human life and the severity of its condemnation of persons who deliberately and with premeditation take the life of another human being. 28 It may be true, as Mr Nicholson submitted, that generally persons in the community do not need to be informed by the criminal courts of the value which a society places upon human life or the seriousness of taking the life of another person. But it cannot reasonably be argued that the prisoner held these beliefs and yet he could take the life of Ms Hoare in the way in which he did. 29 Notwithstanding that the attitude of the courts and society to the taking of human life must have been impressed upon the prisoner by the sentence imposed upon him by Abadee J, the prisoner once again armed himself with a lethal weapon in order to take the life of another person. This was not an offence that arose in the heat of passion or on the spur of the moment without pause for reflection or consideration of what he was doing. To the contrary, the prisoner appears to have been in complete control of his emotions and faculties both before and after the stabbing. 30 In my view the fact that at the time of the murder the prisoner was serving a sentence for murder is a matter that is relevant to an assessment of his culpability for the offence for which he is now to be sentenced and is an aggravating feature of the circumstances in which the second murder was carried out. 31 In my opinion the objective seriousness of the offence is very grave indeed. As I have indicated this was a premeditated stabbing done with intent to kill and where a number of aggravating features were present. There is nothing in the objective facts that mitigates the seriousness of the crime. The real question arises as to whether it is so heinous that a life sentence should be imposed either by employing the common law or by reason of s 61 of the Crimes (Sentencing Procedures) Act; see Regina v Harris [2000] NSWCCA 469. 32 Notwithstanding the material contained in the pre-sentence report in which I have quoted above, the Crown has maintained the stance, which it took at the commencement of the hearing before me, that this is not a matter where the court is required to impose a life sentence. After considerable reflection on the matter I am prepared to accept that concession. The sentence of life imprisonment must be reserved for cases falling within the worst category of murder otherwise the significance of that sentence is devalued. There are statements in the cases as to the devastating effect of a life sentence on a prisoner where hope of reform and release is non-existent see Regina v Petroff (NSWSC, unreported, 12 November 1991) cited with approval in Regina v Garforth (NSWCCA, unreported, 23 May 1994). This may have been a factor operating in the present case. 33 To some extent the sentencing of the prisoner for the murder of his cousin is academic by reason of the fact that the prisoner is presently serving a life sentence without any prospect of release. But proper sentencing principles require that I fix an appropriate sentence for the offence before me, putting to one side the prisoner's present custodial situation. I am also required to consider whether a non-parole period should be specified in respect of the sentence I am to impose disregarding the fact that by reason of the sentence he is serving he can never be released. 34 The prisoner has recently turned 31 years of age. He has a record dating back to 1986 for offences of dishonesty. In 1988 he received a gaol sentence for an offence of common assault. In June 1989 he was sentenced to a minimum term of imprisonment of three years for an offence of robbery with wounding. In September 1992 he was sentenced to four years penal servitude with a minimum term of two years for an offence of assault with attempt to rob in company. The murder of Ms Hoare was committed while on parole for this offence. While serving his current sentence he received a one month sentence for assaulting a prisoner officer. 35 The prisoner is a person who seems to be prepared to use personal violence either in the course of a criminal venture or for its own sake. A question of the danger he poses to other persons in the community clearly arises. Justice Abadee imposed a life sentence upon the prisoner because of the objective seriousness of the offence the prisoner had committed. It was the extreme level of his culpability and the nature of the crime that were at the forefront of Abadee J's assessment of the appropriate sentence to be imposed upon the prisoner. His Honour appears to have made no assessment of the danger the prisoner posed to society although he did note that his prospects for rehabilitation did not appear to be good. 36 Predictions of dangerousness are notoriously unreliable; see Bugmy v The Queen (1990) 169CLR 525 at 537. It may be that a court will more confidently come to a conclusion that a particular individual is a danger where there is some underlying mental condition or personality defect in the accused which accounts for, or contributes to, the offending behaviour, particularly where that condition is permanent and untreatable. But of course that is not the only basis upon which a reliable assessment of a person's dangerousness can be made. The nature of the offence itself, or when seen in the light of the offender's antecedents, may prove ample evidence of a person's dangerous predisposition or tendencies; see Regina v Garforth, above. 37 Of course considerations of dangerousness cannot lead to the imposition of a sentence that is harsher than that which the offence committed deserves; see Veen v The Queen(No 1) (1979) 143CLR 458; Veen(No 2) at 472, 476-477. The sentence imposed must be proportional to the culpability revealed by the offending conduct. In the present case as the culpability of the accused does not justify or demand a life sentence neither can concern for his future dangerousness. 38 There is little in the prisoner's background of relevance to the present task. He enjoyed a good upbringing within a close and supportive family network. There is no history of violence or alcohol use in his immediate family. However, it seems that whenever the prisoner left his parents' immediate control he consumed alcohol and cannabis with older siblings or associates and this led to his offending. His abuse of alcohol resulted in violent conduct that he cannot explain. This violence apparently was not reflected in his conduct to members of his family. He has been mostly unemployed and this has contributed to his misuse of alcohol. 39 The prisoner has been released to parole on two occasions but each time parole was revoked: the first by the prisoner reoffending, the second by his failure to undertake a rehabilitation course and by consuming alcohol. Notwithstanding his entrenched use of alcohol and its resulting violence, the prisoner appears to have some insight into his behaviour. Despite the fact that he is serving a life sentence, with no prospect of release, he has successfully undertaken some courses in gaol to address his problems in an attempt to change his behaviour. He has also sought to be involved in alcohol and drug groups in the prison, but he has faced the difficulty of numerous movements within the prison system. He retains family support notwithstanding his offending and his life sentence. There is the possibility that he may be assessed as suitable for a violence prevention programme. 40 Mr Nicholson has not contended that there are special circumstances in this case. The court might well be justified in refusing to specify a non-parole period at all given the seriousness of the offence, the prisoner's antecedents and his prior conduct on parole. But in light of the attempts he is making at rehabilitation notwithstanding his present custodial situation and in view of the length of the sentence I am about to impose, I will specify a non-parole period. However, even were the prisoner able to be released under this sentence, he would not be eligible to be considered for parole until after his fifty-first birthday. 41 The prisoner is entitled to the fact that he pleaded guilty before the magistrate at the first opportunity. However, there is no remorse or contrition. But for the plea of guilty I would have imposed a sentence of 40 years. By reason of the plea being at the first reasonable opportunity I reduce the sentence to 30 years. In my view no lesser sentence would appropriately reflect the criminality involved in the offence and the need for both general and specific deterrence. 42 The prisoner is sentenced to imprisonment for 30 years with a non-parole period of 22 years. The sentence is to commence from 22 September 1999. The non-parole period will expire on 21 September 2021 the date upon which the prisoner is to be considered for release to parole subject to any other sentence he may be serving at that time.

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