R v Guider

Supreme Court of NSW|2002-08-28|Before: Wood CJ

CITATION : R v Guider [2002] NSWSC 756 FILE NUMBER(S) : SC 70041/02 HEARING DATE(S) : 7/6/02, 23/8/02 JUDGMENT DATE : 28 August 2002

PARTIES : Regina Michael Anthony Guider JUDGMENT OF : Wood CJatCL at 1

COUNSEL : P. Conlon SC P. Zahra SC SOLICITORS : S E O'Connor D J Humphreys CATCHWORDS : CRIMINAL LAW - Murder - plea of not guilty - Manslaughter - unlawful and dangerous act - plea of guilty - child victim - paedophilia - use of sedatives on child causing death. LEGISLATION CITED : Crimes Act 1900 Cameron v The Queen [2002] HCA 6 Griffiths v The Queen (1989) 167 CLR 372 Pearce v The Queen (1998) 194 CLR 610 Regina v Alexander NSWCCA, 24 February 1995 R v Astill (No 2) (1992) 64 A Crim R 289 Regina v Blacklidge NSWCCA 12 December 1995 CASES CITED : R v Hayes [2001] NSWCCA 358 Regina v Hill (1981) 3 A Crim R 397 at 402 Regina v Maguire NSWCCA, 30 August 1995 Regina v Sharma [2002] NSWCCA 142 Regina v Simpson [2001] NSWCCA 534 Regina v Thomson and Houlton (2000) 49 NSWLR 383 Veen v The Queen (No 2) (1968) 164 CLR 465 DECISION : Sentence of imprisonment for 17 years, to date from 7 June 2002 and to expire on 6 June 2019. Non parole period of 12 years, to date from 7 June 2002 and to expire on 6 June 2014.

26 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SENTENCE 1 HIS HONOUR: The prisoner, who was charged with the murder, on 19 August 1986, of Samantha Terese Knight, has pleaded guilty to her manslaughter. That plea has been accepted by the Crown in full satisfaction of the indictment, and he now appears for sentence. FACTS

2 The present offence needs to be understood in the context of the prisoner's history of having committed serious sexual offences in relation to a large number of children over a period in excess of 15 years. 3 In early 1996, 2 young children each 7 years of age, complained that the prisoner had been indecently assaulting them and taking nude photographs of them. He was, that the time, employed as a gardener at Royal North Shore Hospital. 4 On 2 and 6 February 1996, searches were made of his work shed and of his residence. Some thousands of 35 mm slides, photographs and negatives, depicting children in indecent poses and in the course of being sexually assaulted were found. Also discovered were a number of pornographic books and articles, children's underwear and cameras, as well as various texts in relation to child abuse, incest and child photography.

5 When interviewed by police on 6 February 1996, he admitted the offences concerning the two girls which had initiated the investigation, and acknowledged having a problem in his dealings with children, specifically involving an obsession with photographing them and also with collecting underwear. In subsequent interviews on 20 February 1996 and 4 April 1996, he identified, by name, some at least of the children shown in the various photographs and slides, but he did not admit, with one exception, to having behaved indecently in relation to them.

6 As a consequence police operation Jadite was commenced in order to investigate possible further offences on the part of the prisoner, in the course of which he was also interviewed in April and July 1996 concerning the disappearance of Samantha Knight.

7 During the April interview he acknowledged having met Samantha once or twice at Manly, but claimed to have no knowledge in relation to her disappearance. He also acknowledged having kept scrap books which included details of missing children such as Samantha and the Beaumont children, which he said he had thrown away, claiming that he had compiled these books out of his interest in mysteries, but for no other reason.

8 During the interviews on 9 and 10 July 1996 he accepted that he may have photographed Samantha at Manly, although "not in a sexual way". He insisted that he had nothing to hide. In the course of a discursive and somewhat rambling interview, in which his interest, if not fascination, concerning the disappearance of children was mentioned more than once, he offered some extraordinary suggestions along the lines that the explanation possibly lay in kidnapping by aliens, or by white slave traders.

9 In the course of the continuation of the interview on 10 July, he volunteered that he thought that Cooper Park would be the area to search for Samantha, saying that he had been there before her disappearance looking for Aboriginal sites. Once again he specifically denied having anything to do with Samantha's disappearance and he returned to his theory that aliens or white slavers, or additionally, on this occasion, that Satanists, may have been involved.

10 When he appeared before his Honour Judge Flannery, in the District Court, on 12 September 1996, he pleaded guilty to some 60 counts involving sexual offences in relation to 9 young girls and 2 young boys extending over a period of approximately 15 years between January 1980 and January 1996. In summary, the counts which were before the Court involved the following offences: (a) 18 counts of indecent assault pursuant to s 61M(2) of the Crimes Act ;

(b) 1 count of aggravated indecent assault pursuant to s 61M(1) of the Crimes Act ;

(d) 15 counts of sexual intercourse without consent pursuant to s 61D(1) of the Crimes Act comprising acts of penile penetration, penetration with a finger and with objects, and oral intercourse (e) 1 count of aggravated act of indecency with a child under the age of 16 years pursuant to s 61O(2) Crimes Act; (f) 6 counts of indecency with a child under the age of 10 years pursuant to s 61O(1) of the Crimes Act ; (g) 2 counts of indecency pursuant to s 61E(2) of the Crimes Act; (h) 1 count of common assault. An offence of possession of child pornography was also taken into account on a Form 1.

11 The victims in these cases had, in most instances, come into contact with the prisoner after he had befriended their mothers. In the remaining cases the victims were friends of other victims. He had been a regular visitor to the homes of the women whom he had befriended, and he had provided gifts and outings for the children. As appears from the reasons for sentence, and from other materials placed before me, in a number of instances the children had been given the drug Normison mixed with Coca Cola, as a prelude to the commission of the sexual offences, and to the taking of photographs of them with their genitals exposed.

12 The offences, his Honour found, were objectively "very very serious", involving as they did offences extending over 15 years, concerning children between the ages of 2 years and 16 years, the use of stupefying drugs in circumstances which were found to be dangerous, and the betrayal of trust particularly so far as the prisoner had befriended vulnerable families, as well as being offences which had been committed for his own sexual gratification.

13 When appearing before Judge Flannery, the prisoner proffered shame and disgust for what he had done, and claimed to be facing his criminality "head on". He was unable to offer any excuse for what he had done and said that it was "something that I really didn't have control over".

14 At that time, the prisoner was aged 45 years and had no prior convictions for sexual offences. His pleas were accepted as having been offered at the earliest possible time. He was also regarded as having had a good work background, and to have had a traumatic childhood.

15 The sentences imposed were all backdated to 28 February 1996, being the date on which he had been taken into custody. For the 16 charges under s 38 of the Crimes Act, that is, the administration of a stupefying drug with intent thereby to commit an indictable offence, sentences were imposed of 16 years penal servitude which would have expired on 27 February 2012. Minimum terms of 10 years were fixed, which would have been due to expire on 27 February 2006. In relation to all of the other offences concurrent fixed terms were imposed comprising sentences of 6 years for the s 61D(1) offences, 4 years for the s 61M(2) offences, 12 months for the s 61M(1) offence, 18 months for the s 61O(1), 61O(2) and 61E(2) offences, and 9 months for the common assault offence.

16 In May 1998, a further investigation was conducted into the activities of the prisoner by Crime Agencies which established Strike Force Harrisville.

17 In the course of that investigation members of the Task Force became aware that the prisoner also had property stored in a rented storage unit at Girraween. It was searched pursuant to warrant on 16 June 1998, and a substantial quantity of further photographs, and photo transparencies were located, again of a pornographic nature, depicting other young girls, some of whom appeared to be drugged, and who had their genitals exposed. Two further victims were identified through these photographs. Apart from the photographs police also recovered the three scrap books containing newspaper cuttings, concerning the disappearance of Samantha Knight, which the prisoner had previously said had been thrown away.

18 Inquiries showed that that the prisoner had come into contact with the two young victims, who were identified from the photographs, after first meeting the mother of one of them. Subsequently he had been introduced to her friend. He had been a frequent visitor to the home of the first victim, and had often acted as a babysitter for her. The further offences had been committed at the home of this girl, and they followed a similar modus operandi. Apart from the acts of indecent touching, and the taking of photographs of the victims while their genitals were exposed, there were a number of acts of oral intercourse and digital penetration performed by the prisoner.

19 These offences were committed between January 1983 and May 1985, while the girls were aged between 5 and 8 years.

20 Arising out of these inquiries the prisoner was reinterviewed by police on 19 July 1999, and made a number of admissions in relation to the further offences, and in relation to his practice of photographing girls for his sexual pleasure. Questions were again put to him in relation to the disappearance of Samantha Knight. He repeated that he had only met her two or three times and denied any knowledge of her disappearance. He also denied having assaulted her, or having taken indecent photographs of her.

21 When presented with the scrapbooks which had been recovered from the storage unit during the June 1998 search, he acknowledged that they were his and said that he had been mistaken in believing that they had been destroyed. He then disclosed that he had kept these three books because they were of interest to him. He explained that he did not think that police were looking in the right areas for Samantha, and said that her disappearance was a mystery about which he was determined to find out more, again making reference to other similar cases.

22 In the course of this interview, his attention was drawn to a series of pornographic slides and photographs taken on a night in mid 1985, when admittedly Samantha Knight was present with the 2 girls who were the subject of the offences which came before Judge O'Reilly. One of these photographs, showing the exposed genitals of a girl, was excluded as having related to those girls, and by inference it must have been a photograph of Samantha Knight. Additionally, several slides from this series were missing. The prisoner, when confronted with this, maintained his denial of having taken indecent photographs of her, or of having sexually assaulted her, repeating that he had nothing to hide concerning her.

23 Statements obtained from a number of witnesses were contradictory of the prisoners various accounts to police, both in 1996 and 1999, as to his contact with Samantha having being limited to the two or three occasions which he disclosed.

24 Subsequently he appeared before his Honour Judge O'Reilly in the District Court and pleaded guilty to 8 counts relating to these 2 girls which in summary involved 3 counts of indecent assault pursuant to s 61E(1) of the Crimes Act, and 5 counts of sexual intercourse with a victim under the age of 16 years pursuant to s 61D(1) of the Crimes Act. Nine other offences involving acts of indecency or incitement of such acts were taken into account on a Form 1. Absent admissions as to the giving of Normison to these two girls, no charges were preferred in relation to that potentially more serious offence.

25 In his reasons for sentence, on 11 February 2000, Judge O'Reilly appropriately described these offences as "appalling". He made reference to the prisoner's current custodial position which required that he be held on protection, and to his dysfunctional background, the details of which had earlier been noted by Judge Flannery. His Honour found him to be a "compulsive paedophile", and to have committed the offences while in a position of trust.

26 A conclusion was reached by his Honour, in circumstances where the further offences could have been dealt with by Judge Flannery, that there was little point in increasing the overall additional term.

27 As a consequence, for the s 61D(1) offences concurrent fixed terms of imprisonment, each of 6 ½ years, were fixed to commence from 11 February 2000, and to expire on 10 August 2006, effectively extending the earliest date on which the prisoner would be eligible for parole by 6 months. In respect of each of the remaining counts, fixed terms of 12 months were imposed commencing on 11 February 2000 and expiring on 10 February 2001.

28 In the light of that background which I note in order to place the present offence of manslaughter in context, and to make proper allowance for the principle of totality, I return to the specific circumstances of that offence.

29 The evidence before me shows that the prisoner first met Samantha Knight, and her mother Tess, in early February 1983 at a birthday picnic for one of the two girls who had been a victim in relation to the offences dealt with by Judge O'Reilly. As I have already observed Samantha had been a visitor to the home of that girl, and while there she had been photographed by the prisoner, during the years 1984 and 1985.

30 In 1986 the family of that victim left the Sydney area, and in the same year Samantha and her mother moved to Bondi.

31 On the afternoon of 19 August 1986, Samantha walked home after school, changed her clothes and then went out. She did not return by 6.00 pm, the time she was due back. Between 5.30 and 6.00 pm a number of witnesses saw her on Bondi Road near Wellington Street. Some said that she was in the presence of an adult male, who upon the Crown case was the prisoner. It is its case that he then took her to a location which has not been determined, and gave her Normison, most probably with the intention of taking indecent photographs of her. Tragically, she stopped breathing and died. The prisoner then disposed of her body. Samantha was at the time of her death only 9 years old.

32 A prison witness, "N", informed police that in 1996 while discussing the sex offences which had come before Judge Flannery, the prisoner said to him that police had also spoken to him in relation to Samantha Knight. He then added "well, I didn't mean to do it. I must have given her too much". He added "I must have put too much Normison in her coke and she wouldn't wake up". He also mentioned having photographs of her stored in a factory somewhere with his Aboriginal stones. It was the fact that the prisoner had a long standing interest in Aboriginal sites including burial sites and had a collection of artefacts and relics, some of which had been recovered during the police searches.

33 This witness asked him what he had done with the body, to which the prisoner replied "if the cops looked in Cooper Park they might have found her around the salt bushes in that place."

34 Further admissions were made to another prison inmate, "Witness O", during 1998. In the course of this conversation , while acknowledging having given the girl a drug in his shed and later having discovered her dead, the prisoner made some observations suggestive of another man having been present and having assisted in burying the victim's body. He also asserted that at a later time he had returned to the grave site where he had dug up the remains and placed them in a dumpster along with garden refuse near his place of work, which was then taken to a garbage depot. At the time he was working at the Royal Yacht Squadron at Kirribilli, as a gardener.

35 Police made a search of the Cooper Park area, and of other areas where the prisoner had been working, but they were unable to find any trace of Samantha's body. 36 As a result of extensive, and if I may say, dogged and impressively painstaking inquiries by police since the Task Force was formed, a body of circumstantial evidence was gathered in relation to the Prisoner's involvement in the killing. He was eventually arrested and charged on 22 February 2001, and committed for trial on 29 April 2002.

37 The prisoner has not since his arrest provided any specific information to the police, or to the Court, in relation to the details of the offence, nor has he provided any firm information concerning the whereabouts of Samantha's body. In particular he has not disclosed whether his meeting with her was a chance meeting or something which he had planned. While he has by his plea, admitted to having killed her, the details of the contact and what followed remain unknown. As I will mention later, I find this particularly disturbing.

38 The plea has been accepted in full discharge of the indictment, in that the Crown accepts that it cannot prove that the prisoner had any of the states of mind required for murder. It may be accepted that in the light of the way in which he had previously used Normison, it would have been impossible for it to show that he had intended, on this occasion, to kill Samantha, or to cause her grievous bodily harm. Nor would it have been possible to show that he had a realisation that the probable consequences of his act was her death. Additionally, it is accepted that the Crown, being unable to prove what he intended to do with Samantha, is not in a position to establish that his offence was one of felony murder.

39 In all of these circumstances, the Crown and the prisoner have acted appropriately in treating the offence as one of manslaughter, comprising an unlawful and dangerous act on his part, dangerousness being determined, for this offence, objectively rather than subjectively. The maximum available sentence available for the offence is accordingly one of imprisonment for 25 years.

40 As I have observed, the prisoner was charged with murder on 22 February 2001, and indicated an intention to plead guilty to manslaughter when appearing for arraignment on 7 June 2002. In the sense that he had a defence to murder, and did not know with certainty, until his arraignment, whether the Crown would accept a plea to manslaughter, that plea can be regarded as one that was offered at an early opportunity. On the other hand, he had been less than forthcoming in relation to the death of Samantha when spoken to by Police in 1996 and 1999, and he had continued to protest his innocence. Additionally he had not confronted the full extent of his criminality when appearing for sentence in the District Court before their Honours Judges Flannery and O'Reilly. On the contrary it was not until he was faced with the possibility of going on trial for the murder of Samantha Knight, that he finally accepted the additional criminality which he had been concealing for approximately 16 years.

41 Viewed objectively, the offence for which the prisoner be sentenced was gravely serious. It was submitted on his behalf that it did not, however, fall into a worst case category of manslaughter, since it was not a case involving an intent to cause harm, which might have been reduced to manslaughter by reason of provocation or substantial impairment by abnormality of mind. 42 In that regard it was pointed out that the heaviest sentences passed for manslaughter tended to be those where specific intent, or reckless indifference, had been established, but the offence of murder which otherwise would have been made out, had been reduced to manslaughter by reason of one or other of the "defences" mentioned.

43 I accept that this is so, but it does not provide any basis for diminishing the objective seriousness of the present offence. An attempt to graduate the very many categories of conduct that can constitute manslaughter into descending orders of objective severity, and then to attempt to place a specific offence at any particular point either in the range for the relevant category or overall, would in my view be a fruitless exercise, by reason of the wide range of circumstances, objective and subjective, which this offence encompasses.

44 For similar reasons, the Judicial Commission statistics which were tendered, and which show that only 7% (or 10 cases) have attracted head sentences of 14 years or more, also provide little of assistance, since the statistical population of 173 cases embraces an enormously wide range of objective circumstances. They include events ranging from conduct involving momentary inattention causing death, to the deliberate infliction of death in circumstances of considerable violence or brutality where the offender's responsibility is significantly impaired or diminished by abnormality of mind, or by reason of provocation: Regina v Maguire NSWCCA, 30 August 1995, and Regina v Alexander NSWCCA, 24 February 1995.

45 Since the offence does cover such a wide range of events, and outcomes ranging from non-custodial sentences to sentences proximate to those passed for some offences of murder, it has been recognised as notoriously posing difficulties for sentencing. Attempts at comparison with other cases are in fact largely unproductive unless substantially similar circumstances are shown to exist. No similar case has been identified.

46 The starting point for any consideration of the offence is that it is one which involves the felonious taking of human life, and for that reason it is a very serious crime: Regina v Hill (1981) 3 A Crim R 397 at 402. The value which the community places upon the preservation of life, and particularly that of young children, is reflected by the need to have conduct, which is involved in its taking, denounced by a sentence appropriate to the circumstances of the case: Regina v Blacklidge NSWCCA 12 December 1995.

47 In the present instance, the objective seriousness of the offence cannot be assessed by reference to the provisions of the drug Normison to the child alone, as might be the case, for example, where a carer or health professional, in circumstances constituting gross negligence, prescribes or gives inappropriate medication to a child, in the mistaken belief that it will be of benefit. In this case the unlawful act must be understood as the deliberate supply of Normison to Samantha in order to render her unconscious, so that the prisoner could photograph her or possibly touch her in an indecent way. 48 Therein lies the gravity of his conduct, as is evident from his admitted long standing practice of using the drug for this purpose, and from his specific admission to Dr Westmore that he has given his victims Normison to "put them to sleep and I would take happy snaps, pictures of them which I would use for my own gratification later on."

49 There is no reason to suppose that the prisoner was aware of the risks associated with the drug Normison, which Professor Starmer described in the following terms: "1. Normison is a commercial formulation of Temazepam. (a 1,4-benzodiazepine)… Temazepam is a sedative, hypnotic drug, which hastens the onset of sleep and increases total sleep time. ..

The acute side-effects which are commonly encountered after Temazepam administration are sedation, drowsiness, light-headedness, ataxia and lethargy... Less frequent side-effects (usually at higher doses) include confusion, as well as impaired mental and psychomotor function. Other side effects include bizarre behaviour, agitation, and hallucinations. Memory is often impaired and benzodiazepines are used clinically for their amnestic effects. The safety and effectiveness of Temazepam in children less than 16 years has not been established and its use is not recommended" 50 As Professor Starmer also noted: "4. Temazepam does not have a pronounced taste and could probably be administered in Coca Cola without detection. It would be expected to produce sedation and, perhaps, poor recall of events which occurred when the individual was under the influence of the drug."

51 In conclusion, he noted that: "14. …the general awareness of a child could be readily reduced by the administration of Temazepam in relatively small doses", and, he added Temazepam has "toxic effects in overdose".

52 It is evident that the prisoner knew of the sedative effects of Normison, namely, that it induced sleep, reduced awareness, and affected memory. Those effects were obviously conducive to the performance of the activities which he found sexually gratifying, and I am satisfied that this was the reason for giving Samantha the drug after meeting her in the street, and taking her to another location. While the act of taking her away does not qualify as a forced abduction, it did involve a significant breach of the trust which she placed in him as a result of their prior association.

53 For the reasons already identified, relating to the wide variety of activities and circumstances that lead to manslaughter convictions, I regard any search for a worst case scenario, against which the present case should be measured, as quite illusory. Mercifully the present case is unique, at least in so far as the researches of counsel and myself are concerned. However viewed, and regardless of any comparison with the moral blame attaching to other killings, I consider that it is one involving an exceedingly grave degree of objective seriousness. It must be sentenced as such.

54 The conduct involved was in fact abhorrent to all right thinking members of the community, and the sentence which is to be imposed must reflect a very strong element of general deterrence so as to convey to anyone, who is minded to engage in similar conduct, that he will receive a condign sentence. Equally of course it must reflect significant elements of retribution, punishment and personal deterrence for the prisoner, the latter so far as this was by no means the only occasion on which he has given Normison to young children, while satisfying his deviant sexual urges.

55 Of critical importance for sentencing the prisoner, is an assessment as to whether or not he has insight into his offending and as to whether he poses an appreciable ongoing danger to young children within the community. That turns upon an examination of his personal background and personality state, his history of offending, his own feelings in relation to this offence, the extent to which he has any genuine feelings of remorse, and his prospects of being rehabilitated through some form of therapeutic programme.

56 This is not an easy assessment both by reason of his dysfunctional background which was not of his own making - assuming as I must, in the absence of any contrary evidence, its truth - and by reason of the very limited disclosure which he has made concerning this offence.

57 In this latter regard I observe that, notwithstanding the natural concern of the victim's parents as to her whereabouts, he elected not to give evidence before me. Moreover, when examined by Dr Westmore for the purpose of obtaining a current psychiatric assessment, he claimed not to remember much of the incident because at the time he was "heavily into drugs". When asked how many tablets he had given Samantha he said: "I can't remember back…that day is particularly blank in my mind. I've obviously put it out of my mind. I have very vague recollections. I dissociate myself from aspects of my life that I have difficulties with." He went on to say that going to court was difficult for him and he said " Physically I'm in court but mentally I'm not there, I'm elsewhere, it's the only way I can cope, I've always done this. That period of my life. Much of it's a blur."

58 Later he added: "I never physically harmed the girl, I intended to take her home, it's a very sad thing. It caught me by surprise that the drug had any effect like that. Naturally I panicked, I went into a, I knew I was in trouble and the other side of me took over, the protective side which tried to find some way out of the problem, disposing of the evidence I guess. I've blanked all of this out of my mind. I can't be much more specific. A few years ago I might have been able to… but since then I've suffered a horrendous bashing on the head with an iron bar, I've never been the same again mentally, I've not been properly assessed and I'm terrified if I'm put into a cell with anyone because I think the same thing will happen."

59 In the light of his obvious preoccupation with the case over the years, as disclosed by the interviews with police, and by the many conversations which other witnesses recalled, I find this part of the history given to Dr Westmore, and his failure to disclose precisely what occurred, to be disturbing. In my view it is indicative of a lack of remorse and of a failure to confront his offence. Additionally it is consistent with the manipulative and deceptive way in which he dealt with police in 1996 and 1999, and with the way in which he obviously disposed of and/or concealed evidence relating to Samantha's death.

60 Since the clue to this part of his makeup and as to his future dangerousness almost certainly lies in his background, I will turn next to a consideration of his subjective circumstances. SUBJECTIVE CIRCUMSTANCES

61 The prisoner was born on 20th October 1950 and is accordingly now aged almost 52 years. His background largely appears from the histories recorded in the various documents which were prepared in connection with the earlier sentencing proceedings, and from the history which he supplied more recently to Dr Westmore. 62 In summary, the prisoner informed the authors of these reports that he had become involved in incestuous behaviour with his mother, who is now deceased, and who suffered from paranoid schizophrenia, while in primary school. He claimed to have been asked once by an adult who was a stranger to him to commit an act of indecency for money, and then to have been the subject of sexual abuse by other inmates, and by an approved visitor, after being placed in a boys home at about the age of 11 years. It was his memory that this visitor who took him on an excursion gave him some pills which had left him with only a vague awareness and memory of what had occurred.

63 The experience of being placed in this home, and later in another home, after being abandoned by his mother, was something which he described with some distress. While there he indicated that he also participated in the sexual abuse of other boys.

64 According to him he had no knowledge of his biological father. The man he referred to as his father allegedly had a problem with alcohol and gambling and had been physically abusive towards him. That man's relationship with his mother, he said, had been difficult, and resulted in a separation at a time when he was 11 years old. His mother, he said, had died in her early fifties, after numerous psychiatric admissions. There was one other son of the relationship who had a prison record. There was another child in the family, whose paternity was uncertain, but who allegedly also had a prison record, psychiatric problems and a tendency to set fire to churches. 65 It was his account to Janet Devlin that before being detained in the boys home he had lived with his mother in various forms of charitable and community service housing as well as living for a time at Granville with the man he knew as his father.

66 He claimed to have enjoyed school until he had been sent to the boys home, but found that his performance then deteriorated.

67 After leaving these premises he worked as a copy boy, a clerical assistant, a storeman and packer, a labourer, a cleaner, and as a gardener. Despite his difficulties at school, he appears to have been quite intelligent and to have involved himself in a range of activities and interests, including the study of Aboriginal sites and culture, writing, reading, acting as an honorary ranger, horticulture, photography, and compulsively collecting articles and books on matters of interest.

68 He claimed to have had some adult heterosexual relationships, usually of a platonic nature, although one, which was more permanent, resulted in him setting fire to the business premises of this partner and her new lover, once his relationship with her broke up. For that offence, sentence was deferred in 1979 upon condition that the prisoner enter into a good behaviour bond for 5 years. He had earlier been placed upon a recognisance and fined for offences of stealing and false pretences. None of these matters however has any relevance for the present purposes due to their antiquity.

69 Notwithstanding his eclectic interests, he appears to have always been something of an introverted, avoidant, loner unable to commit to any long term relationships, regularly moving between various hostels, boarding houses or similar forms of accommodation, in the Sydney region. It was in the course of these moves that he came into contact with the various families whose trust he then abused. Clearly he felt more comfortable in the company of children, and regrettably they appear to have found him entertaining, in the way that reflects the classic modus operandi of a committed paedophile, who is quite unable to see the harm which he is causing and who professes to believe that the children involved are willing if not active participants, whose well being is unaffected.

70 He also claimed to have developed an alcohol and drug habit, using Normison, cough medicines, prescription pills, cannabis and LSD. He has never received any formal psychiatric treatment for his problems, although he has now completed the preliminary assessment required for admission, in due course, to a sex offender program. He has had some history, so he says, of physical illness in the form of cardiac difficulties due to earlier heavy alcohol intake, hepatitis A, and hypertension, for which conditions he is receiving medication. He certainly appears older than his chronological age, although that may well be due to the rigours of prison life, and the dangers to which he has been exposed while in custody and which have seen him assaulted more than once.

71 Two circumstances appear to me to be of direct significance in relation to the question whether the prisoner actually has insight and remorse for what he did to Samantha, and in relation to the further question whether he presents as a continuing risk to young children.

72 The first is the fact which I have already mentioned that the prisoner has kept to himself what in fact occurred in relation to Samantha. This I regard as quite damning and as an unfavourable indicator for the future.

73 The second concerns the circumstance that the agreed facts placed before Judge Flannery show that the prisoner gave Normison to four victims, who I shall refer to by their initials, subsequent to the occasion which led to the death of Samantha. In summary they were AC (Count 48), CH (Count 29), AH (Counts 23 to 25) and RH (Count 40). In the light of the death of Samantha, the continued use by the prisoner of Normison, in association with indecent touching and/or photography in relation to other children, on occasions which were charged as having occurred between 1989 and 1995, I regard as a significant indicator that he continues to present as a danger to children.

74 If he truly felt remorse or contrition for what he had done, then it is inconceivable that he could have exposed other children to the same danger that led to Samantha's death.

75 These considerations do need to be considered in the light of the reports which were tendered from 2 psychiatrists Drs Westmore and Carne, from 2 psychologists, Janet Devlin and Mr G Farthers, the pre-sentence report prepared for the proceedings before Judge Flannery, and the prison records comprising the Serious Offenders Review Council (SORC) reports and the various certificates in relation to courses which the prisoner has undertaken whilst in custody.

76 Mr Farthers, who interviewed the prisoner on three occasions in February 1996, described him as a man who had maintained a fairly stable lifestyle, albeit on the fringe, with a secretive sexual life and a tendency to fantasy. He was seen as having a depressive style and an ability to meet problems by withdrawal and compartmentalisation of issues and of other people. Mr Farthers described him as a social isolate, whose major feature on personality testing was a thought disturbance reflecting disorganised thinking and confusion. He said that he fitted the typical description of the non-violent paedophile, and was in need of treatment.

77 Of some concern in relation to his insight into the nature of his paedophile tendencies was his observation to Mr Farthers that the girls who had been the victims of the offences then known had joined in his activities, indulged themselves and enjoyed the naughtiness of what they were doing.

78 It was the impression, similarly, of the author of the March 1996 pre-sentence report, that the prisoner appeared to minimise his responsibilities, and in addition, mitigated his behaviour by alluding to his own dysfunctional family background. To the author of this report he acknowledged having had a history of being drawn to children over a period of more than 30 years. If that is true, then it underlines the pervasiveness of his deviancy and presents something of an obstacle to effective treatment.

79 Dr Jonathan Carne who saw the prisoner in March 1996, was of the opinion that he was suffering from the disorder of paedophilia which he had developed, on the background of a personality in which he had a reduced capacity for normal close relationships. Treatment, he indicated, was available through regular psychiatric assessment, psychological techniques, and the use of anti-androgen medication.

80 Prior to appearing for sentence in 2000, the prisoner was reviewed by Janet Devlin. It was her conclusion that the prisoner's "family circumstances and experiences during his youth contributed to the development of a poorly adjusted individual, given to a sense of childlike specialness even as an adult by the nature of the relationship with his mother, and simultaneously psychosexually impaired by the experience. It is likely that this played the most significant role in his deviant sexual behaviour and the literature suggests that mother-son incest may have greater emotional and other sequelae than other forms of sexual abuse." 81 She added that he "became an introverted, socially avoidant and somewhat depressive individual, who likely felt inadequate in the company of adult women and men. It is possible that the paranoid and schizoid traits he displays which may explain some of his behaviour derives from a genetic vulnerability (given his report of the nature of his mother's illness), but that the many other risk factors in his history, including various forms of abuse and neglect equally contributed to his distorted world view. There was no evidence of cognitive dysfunction contributing to his failure to control his impulses with respect to child sex offending."

82 As to the future, she identified the following factors as those which may mitigate against successful rehabilitation: q "substantial history of adversity and trauma during childhood, including multiple forms of abuse q Personality disorder, especially avoidant nature q Depressive illness and past suicidal ideation and attempts q History of drug and alcohol abuse q Offence history q Compulsive sexual behaviour with limited therapeutic intervention." 83 The factors which she said may contribute to successful rehabilitation were as follows: q "Normal intellect and cognitive functioning q Some dysfunctional personality traits but little evidence of overtly aggression (sic) q Currently drug and alcohol free with no reported adversity q Wishes to undertake sex offender programme q Commenced long term individual psychosexual/educational intervention q Adverse events within prison may constitute a further probative factor against further offending q Goals and future orientation re studies"

84 Dr Westmore suggested that the prisoner's sexual dysfunction had developed most significantly after his single long term relationship had broken down (in about 1979), and added that there were significant unresolved issues to do with his history of incest and abandonment.

85 His psychosexual disturbance Dr Westmore thought was suggestive of a "broad one involving primarily paedophilia but also a fetish and a form of voyeurism (the pictures). In addition he also qualifies for the diagnosis of substance abuse (in remission) ."

86 Dr Westmore added: "He is presenting as a tearful and depressed man. My provisional diagnosis is that he has an adjustment disorder with symptoms of depression and anxiety . The differential diagnosis would include a major depressive illness although that is less likely I think.

Because of the nature and extent of his psychological and psychosexual problems, his prognosis needs to be considered in a very cautious and guarded manner. Although he appears well motivated to participate in a treatment programme, he has not had the benefit of attending such a programme to date and it is unclear whether or not any impact on his psychosexual problems will be made with such a programme. The other issue of major concern is his history of using drugs to sedate his victims. This obviously placed them at great risk and even further increased their vulnerability and his capacity to abuse them."

87 Dr Westmore agreed with Ms Devlin's summary of the points for and against rehabilitation.

88 The various diplomas and certificates tendered do show that the prisoner has used his time in prison as might be hoped, in the case of a prisoner who is serving a long sentence, and who has an interest in intellectual activities, by undertaking a wide variety of courses. None of these courses, with one exception, would seem designed to address his problems which do not relate to educational difficulties, or problems with anger or problem resolution, but rather turn upon sexual deviancy.

89 The SORC documents show that he has never presented as a management or behavioural problem, that he has been consistently keen to advance his education, involving the several external university courses which he has successfully undertaken, that he has engaged in bible studies, and that he has kept in regular contact with psychological services. He has however so far only been able to undertake one preliminary educational course in relation to sexual offending. By reason of his existing sentence, and the sentence now to be imposed, it has not been possible for him to undertake the CUBIT programme so that its potential benefits for him cannot yet be assessed.

90 In the light of the various matters outlined, I am of the view that notwithstanding the positive aspects of his prison record, the prisoner's remorse and contrition for the offence is very limited, and such concern as he does have is more for his current predicament. I am satisfied, to the criminal standard, by reason of his limited remorse, his personality deficiencies, his capacity for manipulation, his continued use of Normison upon young children, the pervasiveness of his conduct, which can only be categorised as that of a compulsive and committed paedophile who has little, if any, insight into the consequences of his behaviour, that he remains a serious danger to the community.

91 While paedophilia is recognised as a disorder, unlike other forms of mental disorder, it does not provide any reason for mitigating the objective severity of the present offence. Similarly while the dysfunctional and troubled background of the prisoner may go some of the way to explain why he became a paedophile, it does not excuse his offending.

92 It is true that the various forms of treatment for paedophilia are available, yet in any given case, it might be expected that moderation or control of offending behaviour will depend upon the pervasiveness and strength of the deviant sexual urges, and upon the commitment and strength of the offender to adhere to the program and/or medication, and to abandon what essentially was for him a matter involving pleasure and the gratification of strong sexual urges. I believe that I am entitled to take judicial notice of the fact that the recidivism rate for such offenders is high. 93 My assessment of the prisoner's personality, background, and lifestyle to date, as recorded in the experts reports and taking into account the factors identified by Ms Devlin, leaves me with little confidence that he would be able to respond positively to any such program. He is of course entitled to access to it.

94 This then is a case to which the principles in Veen v The Queen (No 2) (1968) 164 CLR 465 at 472 to 473 apply. While preventative detention is impermissible nevertheless the need to protect society, where a risk of dangerousness is found to exist, can properly be taken into account in structuring the sentence.

95 The prisoner is entitled to some reduction for the plea of guilty. He is also entitled to have taken into account the fact that he will be required to serve the sentence upon strict protection, and will continue to be subject to the problems which inevitably face those who are convicted of offences involving young children, and which can never be totally eliminated: R v Astill (No 2) (1992) 64 A Crim R 289 at 294. The early plea clearly had a utilitarian value in saving the community the cost of a trial, and as such it can be called in aid by the prisoner in accordance with the decisions in Regina v Thomson and Houlton (2000) 49 NSWLR 383 and Regina v Sharma [2002] NSWCCA 142. The case is however one where some moderation of the discount is appropriate by reason of the need for the sentence to take into account the protection of the public - as to which see the observations of Spigelman CJ in Regina v Thomson and Houlton at paras 157-159, and the decision in Regina v Hayes [2001] NSWCCA 358. 96 It may also be accepted that by his plea the prisoner has displayed some acceptance of his responsibility and a willingness to facilitate the course of justice in the way noted in Cameron v The Queen [2002] HCA 6.

97 The case clearly is one to which the principle of totality applies, since it occurred within the time span encompassing the other offences in respect of which the prisoner is already serving time: Griffiths v The Queen (1989) 167 CLR 372 at 393. The effect of the previous sentencing orders is that the prisoner currently has a maximum existing sentence which is not due to expire until 27 February 2012, and an earliest possible parole release date of 10 August 2006.

98 In accordance with Pearce v The Queen (1998) 194 CLR 610, I must pronounce a sentence, which is appropriate for the objective and subjective circumstances of the current offence, and then ensure that an appropriate commencement date is fixed which will reflect the principle of totality. In a case such as the present, it is common ground that the appropriate course is to provide a partial accumulation of sentence, by backdating to the date on which the plea of guilty was entered, namely 7 June 2002.

99 Having regard to the length of the sentence, the issues which the prisoner will have to address, the limitations as to rehabilitation options and opportunities which exist in the case of prisoners on protection, and the need for long term supervision, monitoring and support, both in the interests of the prisoner and of the community, I am persuaded that special circumstances exist, in accordance with the principles discussed in Regina v Simpson [2001] NSWCCA 534 to justify some small variation of the statutory ratio between the non parole period and head sentence.

100 In the light of these findings, I sentence you, Michael Anthony Guider, for the manslaughter of Samantha Knight, to imprisonment for 17 years to date from 7 June 2002 and to expire on 6 June 2019. I fix a non parole period of 12 years, similarly to date from 7 June 2002 and to expire on 6 June 2014. The earliest date on which you will be eligible for release on parole will accordingly be 7 June 2014.

101 I recognise that statistically this is one of the longest sentences handed down in relation to the offence of manslaughter. I am driven to it by the aggravating circumstances which I have mentioned. However, it is so structured as to ensure long term supervision and monitoring, and to test whether the prisoner is able to respond positively once admitted to the Cubit programme. 102 Before leaving this matter I consider it appropriate to emphasise that the use of stupefying drugs so as to engage an unsuspecting victim, whether a child or adult, in sexual activity, constitutes a particularly serious form of criminality. If the purpose of the offender is to have sexual intercourse with the victim then the available maximum penalty is imprisonment for 25 years. If death ensues from overdose, or adverse reaction, following administration of such a drug, then the offender will have committed at least manslaughter, as occurred in the present case, and possibly murder, depending on his purpose. The offence of murder attracts the penalty of imprisonment for life.

Last Modified: 09/02/2002 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.

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