A causal connection between the circumstances of the offender's upbringing and commission of the murders
- Dr Nielssen was asked by the offender's solicitors to include in his report his responses to a number of questions. The first question was whether, on the balance of probabilities, the offender's abuse as a child contributed to the commission of the offences, and he said the answer was "obviously yes". Some of the other questions brought answers that were general and not necessarily applicable to the offender. [41]
- Before I discuss this subject I stress that the establishment of a causal link between the circumstances of the offender's upbringing and the commission of the offences is not essential for his upbringing to be a matter properly to be taken account in the assessment of sentence. [42]
- There are a number of reasons to be cautious about accepting Dr Nielssen's opinion in relation to a causal link. First, it is an opinion that is based upon an unquestioning acceptance of the offender's untested account, significantly as to his substance use history and, more significantly as to the circumstances pertaining to the offences.
- As to the history of substance use, Dr Nielssen was told that the use of "stimulant drugs" (I assume he was referring to ice) was intermittent until the car accident in September 2008. However, he described to Ms Wyzenbeek a use of such drug that was "problematic" from the age of 32 (2006). The account provided to Dr Nielssen seems to have involved the offender placing particular emphasis on the car accident, claiming that he lost interest in everything and "went on all sorts of drugs". Dr Nielssen appears to have regarded this as significant, but whether the version he received, or the one Ms Wyzenbeek received, or something altogether different is correct is difficult to say.
- As to the circumstances pertaining to the offences, one example is that Dr Nielssen was given an account that Khandalyce was killed because "not turning up with her mum would have raised questions about why her mum was not with her". What Dr Nielssen might have opined if he had been told that the offender now does not dispute that there was a sexual element to the murder of Khandalyce (in that he was "at least attempting to or planning to sexually assault Khandalyce at the time of her death") is unknown. It is also unclear whether Dr Nielssen had regard to the child abuse writings, fantasies and admissions described in the Crown Case Statement, a copy of which he was provided.
- A related question Dr Nielssen was asked to address in his report was "what psychological process or processes can assist in explaining such a causal connection". His response does not directly correlate with the present offender's life in a number of respects and it is a response which I find, with respect, difficult to understand. Dr Nielssen wrote: [43]
"The psychological processes arising from early life neglect and abuse include an enduring increased perception of threat, the lack of basic moral education and socialisation that is the usual situation households that also condone the abuse of children, the tendency to imitate callous behaviour towards other people, a reduced capacity to self sooth in distressing situations without recourse to mind altering substances and the state of chronically dysphoric mood that usually accompanies severe personality disorder."
- I do not know whether Dr Nielssen was suggesting that the offender in fact had a personality disorder and, if so, that it was "severe". (I note that when stating his formal diagnoses he qualified the personality disorder diagnosis as "probable" and then discussed the fact that its attributes may be at least partially due to the offender's pattern of substance use). He referred to the offender's "turbulent behaviour in foster care" but that is not a description that is borne out by the historical records. Dr Nielssen appears to have proceeded upon the basis that a large proportion of the offender's upbringing was one of physical, sexual and psychological abuse whereas that was the case up until he was aged 8 or 9 but not so much thereafter, if at all.
- Another indication of Dr Nielssen not appearing to focus upon the actual life experience of the offender, particularly after he was aged 8 or 9, appears in his response to a question about cases or research demonstrating childhood abuse and later homicide. In responding to this he referred to the most common condition associated with homicide offences being substance use disorder and to it being also more likely that homicide offenders have a pattern of antisocial conduct beginning in adolescence. [44] If Dr Nielssen was suggesting that the offender in the present case had a pattern of antisocial conduct in adolescence, it is not borne out by any of the objective historical material and certainly not by his criminal record which did not commence until he committed a driving offence at the age of 19 and then an assault at the age of 23.
- Another example of Dr Nielssen seeming to have misapprehended the factual material provided to him appears in his explanation for the causal link where in contrasting what he described as the offender's "turbulent behaviour in foster care" (a conclusion inconsistent with the historical records - see above at [77]) he said the offender's "life seems to have stabilised by his early twenties, with consistent employment and marriage". [45] The factual material provided to Dr Nielssen showed that in his twenties the offender was in a marriage that might have offered stability for a while but it ended when (as the offender described it in his writings [46] ) his wife "gave up trying to keep me on the straight and narrow" because she could not cope; he described how he had:
"[H]ooked up with the wrong crew and started getting into the drugs heaps and fighting and constant run in's with the law again".
- I note as well that the offender told Ms Wyzenbeek that this marriage, which he said commenced in approximately 1994 (when he turned 20) and lasted for about five years involved violence by the offender towards his partner on multiple occasions.
- Dr Nielssen also appears to have accepted the offender's accounts of how and why he killed Karlie and Khandalyce whereas such accounts were inaccurate and deficient in the ways I have earlier described.
- As a result of all of this, I find that it is not possible to have regard to the opinions expressed by Dr Nielssen as to how the offender's experience in childhood might bear upon his commission of the two murders.