R v Ian Thomas DARCY

LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999

R v Fernando (1992) 76 A Crim R 58 R v Maxwell (1994) 34 NSWLR 606 Liebke v The Queen [2007] HCA 30 R v Kennedy [2000] NSWCCA 487 CASES CITED : R v Rugori [2001] NSWCCA 64 R v MM (2003) 145 A Crim R 148 R v Livermore (2006) 67 NSWLR 659 R v Kneebone 47 NSWLR 450 Boucher v The Queen (1954) 111 CCC 263

PARTIES : The Crown Ian Thomas Darcy

COUNSEL : E. Balodis - Crown C. Davenport SC - Offender

SOLICITORS : NSW DPP Aboriginal Legal Service

1 The offender knew that he had a problem with alcohol. He knew that he drank too much and that he became angry when drunk. Despite that he continued to drink to excess until, on 24 October 2005, he stabbed his de-facto partner, Dyonne Hillman, in the neck, killing her.

2 Ms Hillman, a woman by the name of Maria Gordon, and a man by the name of Byron Smith, started drinking together on the morning of Sunday 23 October 2005. At about mid-day the three of them went to an address in Dubbo which was the home shared by the offender and Ms Hillman. The offender was there and he joined the others in drinking wine. At one stage the offender and Mr Smith left the home, went to his sister's place where they borrowed money from her and then to a liquor store where they bought two casks of wine before returning. Others arrived during the course of the afternoon. One person in particular who arrived was the offender's first cousin Aaron Gordon. He, unlike the others, did not drink that day. During the evening Mr Smith and Mr Roberts left the premises because they were too drunk. Before he left, Mr Smith helped the offender to bed. After he left there were four adults in the premises: Ms Hillman, the offender, Maria Gordon and Aaron Gordon.

3 About twenty minutes after he was put to bed the offender came out to the lounge room. He then suffered a seizure and fell to the lounge room floor. The offender suffers from epilepsy and indeed had not been drinking for about four months before this day because of that circumstance. After he fell to the floor both Ms Hillman and Ms Gordon went to his assistance. For reasons which are not immediately obvious, but are no doubt due to the amount of alcohol they had both consumed, Ms Hillman and Ms Gordon began to struggle. Mr Gordon separated them. Once again the offender was assisted to go to bed.

4 At around eleven o'clock Ms Gordon left the house with her three children and went home. Mr Gordon and Ms Hillman remained in the lounge room watching television. Once again the offender left his bedroom and came out to the lounge room. He had clearly been drinking a lot and required the assistance of Ms Hillman who guided him to the lounge. He then had another seizure. After he came around he tried to get up. Ms Hillman tried to help him but he simply fell down in front of the television. He remained there for about forty minutes. Whilst he was lying on the ground Ms Hillman went to bed, Mr Gordon then helped the offender up onto the couch when, for a third time, he appeared to have a seizure. Ms Hillman told Mr Gordon to put the offender onto his side and then left the premises to get some more alcohol from Mr Smith. When she returned she drank some of the wine that she had obtained and went back to bed.

5 At about 1.45 am on 24 October 2005 the position was this: Ms Hillman was in bed whilst the offender and Mr Gordon were in the lounge room. Ms Hillman got out of bed, went into the lounge room and yelled at the offender to go to bed. The offender told her to "fuck off". She tried to guide him to a bedroom at the end of the hall but he resisted her. He yelled out "I don't want to go in a fucking room". At this stage Mr Gordon heard the sound of a bang and Ms Hillman calling for help. He went to the bedroom and saw the offender punching Ms Hillman to her face. She was lying on her back on the bed and the offender was on his knees next to her. Mr Gordon rescued Ms Hillman by grabbing the offender by the scruff of his shirt and pulled him away to his own bedroom. Mr Gordon returned to the lounge room leaving the offender in his bedroom and Ms Hillman in the bedroom at the end of the hall.

6 About fifteen or twenty minutes later he heard some footsteps, saw the offender moving quickly towards the kitchen, heard the sound of cutlery being moved around and saw the offender go from the kitchen and walk down the hallway towards the bedroom where Ms Hillman was. Then Mr Gordon heard her scream loudly and so he ran to the bedroom. There he saw the offender on top of Ms Hillman with a knife in his hand. He saw the offender's arm come down towards the deceased and then come back up level to his ear. There was blood on the knife. Mr Gordon grabbed the offender's right wrist and took the knife from him with some difficulty. He was yelling "stop it, stop it" to the offender but the offender was replying "stay out of it". Mr Gordon grabbed the offender and pushed him out of the bedroom door. He placed the knife on a cupboard in the corner of the bedroom.

7 He then went to Ms Hillman and saw that she had a small puncture mark on the side of her neck. Ms Hillman was conscious however and when Mr Gordon asked if she was all right she responded, "yeah, I'm alright". Unfortunately it was this wound which would later cause Ms Hillman's death.

8 Mr Gordon left the bedroom and found the offender in the lounge room. Mr Gordon told the offender that he was going to ring for an ambulance but the offender physically blocked access to the phone. He returned to Ms Hillman and again he asked if she was all right and she again said that she was. Nevertheless he, quite sensibly of course, thought that it was necessary to ring for an ambulance. He went back to the lounge room and tried to grab the phone but was interrupted by the offender. He said to the offender "you gotta ring the ambulance", but the offender simply told him to go. Mr Gordon did leave after being told by the offender that he would ring for an ambulance. He never did.

9 When Mr Gordon left the house he went to stay at a relative's house. She did not have a telephone. Sometime over the next few hours Ms Hillman died as a result of being stabbed by the offender in her neck. The offender telephoned the home of his sister and brother-in-law at 6.07 am. He said to Mr West "come and get that twenty dollars, I think she is dead". (The first part of what the offender said is explained by the circumstance that he had previously borrowed twenty dollars from Mr West.) Ms Darcy and Mr West went to the offender's home where they found him on his front steps, crying. They went into the house, saw that Ms Hillman was dead, and phoned triple 0.

10 Two police officers arrived a short time afterwards. They saw the offender, Ms Darcy and Mr West sitting on the front steps of the premises. They approached the group and said, "what's happened?" The offender said, "I've killed me missus, I've stabbed her" and raised his arms up so that he could be hand cuffed. He was taken to Dubbo police station where he declined to participate in an interview. He did however deny admitting killing the deceased when he was at the premises. The offender now claims to have no memory of the relevant events.

11 Ms Hillman died because when she was stabbed by the offender one of the blood vessels leading to the left side of her brain was damaged. This led to bleeding into the soft tissues of the neck and the entry of air into the blood stream and into Ms Hillman's heart.

12 The Crown tendered three victim impact statements which I read. They eloquently set out the harm felt by others as a result of the death of Ms Hillman. I will treat them in accordance with long established authority and I express my sympathy to all those who have suffered as a result of Ms Hillman's tragic death.

13 The offender was born in 1961. He has a lengthy history of alcohol abuse which was a common problem within his family. One of the consequences of his abuse of alcohol is that he has problems controlling his anger when he is drunk. As I mentioned earlier he also suffers from epilepsy.

14 He was one of five children to his parents and he also had an older half brother. He was born at Warren but moved with his family to Dubbo when he was young, before returning to Warren when he was aged seven. His father was a hard worker who mainly worked as a cook in shearing sheds. Although his father drank, he did not drink heavily and was never violent. The offender started drinking at the age of 18 and at one stage he was drinking methylated spirits as well as smoking marijuana. He has had some periods of reasonable sobriety since then but, as the facts of this matter demonstrate, he has relapsed.

15 The offender has been seen by psychiatrists and psychologists but what they report as to the offender's background is not entirely consistent. The offender himself did not give evidence before me and so some unimportant matters remain unresolved.

16 There is a very curious aspect to one of the reports tendered on behalf of the offender. Dr Reid, a clinical neuro-psychologist, provided a report. It is six pages long. On the last page this appears: "9.7 With regard to the causes of Mr Darcy's cognitive and psychological impairment, I am of the opinion these date from early childhood sexual abuse, the subsequent psychological trauma that this has caused throughout his life. Stemming from this he has abused alcohol as a means of controlling depression and the psychological trauma of the childhood sexual abuse, and the abuse of alcohol has in turn resulted in brain impairment". 17 It is the reference to early childhood sexual abuse which is intriguing because there is no reference in any of the earlier five pages of Dr Reid's report to the offender telling him that he had been sexually abused as a child, nor is there any reference to such a suggestion in any other material put before me. I raised this with Ms Davenport SC who appeared for the offender. On behalf of the offender she disclaimed any reliance on a claim to have been sexually abused as a child and suggested that Dr Reid must have simply made a mistake.

18 The offender has a criminal history but, especially for a person with a long- term problem with alcohol, there are not that many matters on it. There is an offence of malicious wounding in 2003 for which he was put on a suspended sentence after appealing to the District Court (to which I will make further reference later) but as far as can be gleaned from the criminal history tendered by the Crown the malicious wounding is the only significantly serious offence that the offender has committed in the past. The offender has never served a sentence of full time imprisonment until now.

19 It was submitted on behalf of the offender that I could not be satisfied that the offender intended to kill Ms Hillman when he stabbed her with the knife to her neck. I do not accept that submission. I am satisfied beyond reasonable doubt that that is what the offender intended.

20 Even given his substantial level of intoxication it is difficult to accept that a person would stab another person in the neck without intending to kill them. That is not to suggest that a person necessarily intends the natural and probable consequences of his or her action, but in the circumstances of this case where the offender armed himself with a knife, got on top of Ms Hillman, stabbed her in the neck, and was prevented from inflicting any more injuries with the knife by Mr Gordon's actions, then I am satisfied the offender intended to kill Ms Hillman when he stabbed her.

21 It is to be noted that the offender made positive efforts to prevent Mr Gordon calling an ambulance to treat Ms Hillman. The Crown relies on this circumstance as supporting his submission that when the offender stabbed Ms Hillman he intended to kill her. The offender's actions in preventing the calling of an ambulance are however also capable of being explained by a desire on his part to prevent the authorities becoming aware of what he had done. In those circumstances I have not taken these actions of the offender into account when determining what he intended when he stabbed Ms Hillman.

22 It is also noteworthy that the offender did not inflict further violence upon Ms Hillman after Mr Gordon left. In particular he did not stab her again. That may tend to suggest that at the time Mr Gordon left the premises the offender did not intend Ms Hillman's death. But it is the offender's intention at the time he stabbed Ms Hillman which is most relevant. It may be that after the knife was taken from him by Mr Gordon the offender changed his mind about whether he wanted to kill Ms Hillman. It may be that at that stage he even wanted her not to die (although it has to be said that one way of ensuring that would have been to have called an ambulance). But I repeat that I am satisfied beyond reasonable doubt that at the time the offender stabbed Ms Hillman in the neck with the knife he intended to kill her.

23 The offender appears to have shown immediate remorse upon finding Ms Hillman dead. He was crying when his sister and brother-in-law arrived at the premises and made immediate admissions to police when they arrived. It does appear that the remorse did not extend to the offender maintaining his acknowledgment of guilt because a short time after making those admissions he denied that he had done so.

24 This was not a case where the offender has spent days planning to kill his de-facto wife, but there was nevertheless some pre-meditation. It is apparent that after the offender punched Ms Hillman and was dragged away by Mr Gordon the offender had twenty minutes in which to reflect upon what he would do next. Nor was this a case where the offender picked up a weapon which was conveniently nearby in the course of a struggle. His decision to arm himself with a knife was a deliberate one. That is relevant not only to determining how pre-meditated this offence was but it is also instructive because of what it reveals about the validity of the offender's claim that his moral culpability is reduced because of the relationship between this offence and the seizures he had earlier (a matter I will turn to now).

25 One of the primary matters relied on by Ms Davenport was a submission that the offender's moral culpability should be reduced because of the circumstance that he murdered Ms Hillman shortly after having a number of seizures. She said that the evidence established that there was a connection between the offender's epilepsy and his offence. She conceded that the onus was on her to establish this mitigating feature on the balance of probabilities.

26 I am not satisfied that the offender's epilepsy had anything to do with his offence. Indeed I am certain that it didn't.

27 The offender has been examined by a number of doctors with expertise in epilepsy. The offender tendered reports from Dr Lethlean and the Crown tendered reports from Dr Beran. Part of the history which Dr Beran took account of was observations of seizures suffered by the offender whilst he was in custody. Those observations were not themselves tendered before me but Dr Beran extracted relevant parts in one of his reports. Those who observed the offender suffering a seizure whilst in prison reported that at no time did Mr Darcy become aggressive or violent once the seizure had passed. Dr Beran concluded: "These reports are very important because generally seizures follow a stereotypic pattern and on this occasion the patient had two seizures in close succession. This would suggest that if aggression was to be part of the pattern for this man it would have been exaggerated after two seizures, recognising the seizures described by the two eye witnesses were essentially identical."

28 Later he said: "It is most important to note that after two seizures in close succession there was not a hint of aggression and the patient became fatigued and slept deeply. This is typical of people who have had a generalised convulsive disorder and is at significant odds with what is suggested, namely that this patient may have been in a post-ictal confusional state at the time of previous alleged assaults. I do not accept this as a viable option within this case and even more so the description of the possible seizures the patient had is also at odds with the previous descriptions provided by the Corrective Services Officers. The seizures described by the officers do sound to be epileptic in nature and the history is convincing, more so than is anything that has been supplied to explain previous behaviour."

29 Clearly Dr Beran's opinion does not support a finding that there was a connection between the seizures he suffered on the night of 23 October 2005 and the offender's later actions in killing Ms Hillman. Ms Davenport instead relied on the evidence of Dr Lethlean whose reports were also tendered. He was asked to provide his expert medical opinion in relation to whether a person having a seizure can behave in a completely different way to their normal behaviour. This is what he wrote: "It is the case that in the period following a grand mal seizure a person can behave in a completely different way to their normal behaviour. This is normally a period of confusion, with interruption of normal ongoing speech and other activities.

Overall, violence and destructive behaviour are rare/uncommon, and usually caused when the confused subject is forcefully restrained. Person to person directed violence is rare, but a limited number of cases is documented. I would certainly accept as a possibility that Mr Darcy could have been violent in the post-ictal phase of his seizures. Twice violent activity is attributed to previous seizures in Mr Darcy's case. That he appears to have sought a knife prior to the alleged offence is somewhat more 'intentional' than spontaneous and reactive". 30 There are two things of importance to note. First Dr Lethlean did not take into account the observations made by those who saw the offender having a seizure whilst in custody, and perhaps more importantly, there is his qualification in relation to the offender arming himself with a knife. I interpret the last sentence in the passage from Dr Lethlean's report quoted above as Dr Lethlean expressing some considerable doubt as to whether the offender's actions in killing Ms Hillman can be explained, or even partially explained, by his earlier seizures.

31 This is not a case where the offender, during or immediately after a seizure, lashed out at those trying to restrain him. To the contrary he had been left alone in his room for twenty minutes. This was not a case where violence was inflicted by a confused person who was being forcibly restrained. The offender was seen to be staggering as he moved towards the kitchen but this is no doubt explained by his high level of intoxication. He was sufficiently aware of his surroundings to be able to walk directly into the bedroom where Ms Hillman was. None of the actions of the offender immediately before he killed Ms Hillman suggest any confusion at all. I am satisfied that the effects of his seizure had well and truly passed by the time he took the decision to kill Ms Hillman.

32 There is much material suggesting that the offender becomes angry when drunk. Ms Davenport attempted to make a distinction between a person who is angry and a person who is violent and while the two concepts are of course different they are very closely related.

33 He had earlier committed a very violent assault when highly intoxicated. He was convicted of malicious wounding and received a suspended sentence of imprisonment. The sentence had expired by the time he committed the offence for which I must sentence him. The pre sentence report obtained in relation to that earlier offence revealed that the offender "has problems controlling his anger when under the influence of alcohol". The author of the report said:

"Mr Darcy appears to have little insight into his offending behaviour and minimises his responsibility by stating that he was under the influence of alcohol and has no memory of the offence".

34 He was also seen by a psychologist in relation to that earlier offence. Importantly the report reveals that the offender recognised at that stage the connection between his alcohol consumption and offending. The psychologist, Mr Tyrer, said: " Mr Darcy's criminal history is, according to self reports, made up of convictions for assaults, malicious damage, offensive language and resist arrest over a period of approximately twenty years. He claimed that the incidents were largely alcohol related".

35 Later the report says, "Mr Darcy acknowledged that alcohol abuse was the major contributing factor to his criminal behaviours".

36 In those circumstances I do not regard the fact that the offender had consumed an excessive amount of alcohol, to the extent that he was clearly highly intoxicated at the time he killed Ms Hillman, as a significantly mitigating feature.

37 In this case the fact that the offender was significantly intoxicated is neither a significantly mitigating nor an aggravating feature.

38 Ms Davenport relied upon the principles to be found in R v Fernando (1992) 76 A Crim R 58 although she did say that this was not "an extreme situation". As is well known Woods J (as he then was) set out a number of propositions. Proposition (e) was this; "While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities, and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralizing factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects".

39 Having regard to the circumstances of the offender's background this was not a case where the "grave social difficulties" referred to by his Honour were a significant feature.

40 That is not to say that I have ignored the Fernando principles. Indeed the circumstances of this offence demonstrate the endemic presence of alcohol within the offender's immediate community. This case is not to be treated as one where the offender's level of intoxication was unusual in his immediate community and that in turn is a relevant factor in considering why he drank as much as he did in the hours leading up to the death of Ms Hillman.

41 Of course because of the offender's plea of guilty the standard non-parole period of twenty years is not of direct application, nevertheless it remains as an important guidepost to the sentence I should impose in this matter.

42 The offender's intention at the time he stabbed Ms Hillman is of course an important factor in determining the objective seriousness of his conduct. I take into account that the offender had earlier struck Ms Hillman as demonstrating that the violence which ultimately led to her death was something which appears to have been building up over time. I take into account that there was only one stab wound inflicted by the offender, even after Mr Gordon had left the premises.

43 I will also take into account that there was some, albeit limited, planning and premeditation, although that was of course limited by the relatively short time between the offender leaving his room to get the knife and going to the room in which Ms Hillman was as well as the offender's significant intoxication. The fact that the offender was drunk is further, independently, relevant to the objective seriousness of this offence - a calm, cold blooded killing is objectively worse than killing done by a person whose mental state is disturbed by the presence of a great deal of alcohol although I repeat not too much can be made of this in the offender's favour because the offender well knew that he became angry when drunk.

44 For the reasons I have given I assess the objective seriousness of the present offence as being at slightly below the middle of the range.

45 Both the Crown and the offender relied on a category of sentences for murder where a person, usually a man, murders his domestic partner. There are two things I should say about that reliance. Firstly many of the cases pre-dated the introduction of the standard non-parole period of 20 years. And secondly it is not at all apparent that the fact that such cases have one feature in common means that they are of more assistance to me than other cases, where someone other than a person's domestic partner was murdered, which have one or more features which also arise in the present case. One might just as easily have chosen the category of murder cases dealing with stabbings whilst intoxicated or murders where the objective seriousness is slightly below the middle of the range.

46 For this reason my assessment of the appropriate sentence in the present case was undertaken after considering the general pattern of sentencing for all murder offences, in particular those which post date the introduction of standard non-parole periods, rather than only those murder cases where a domestic partner was killed. That is not to say that I did not find the cases relied on by the Crown and the offender helpful - I did - but I have borne in mind the consideration I have just referred to, namely that some domestic murders are very different from the matter before me at present and that sentences for some non domestic murders are also of assistance.

47 This matter had been listed for trial on four occasions before it came before me on 12 November 2007. The trial was due to commence that day. The intention was that legal argument would take place and a jury would be empanelled the following day. However the offender pleaded guilty, apparently after having had the benefit of advice from Ms Davenport concerning the effect of a report obtained by the Crown and served upon her shortly before.

48 The circumstances of the offender's plea of guilty led to some submissions from Ms Davenport concerning the extent of the discount I should allow for the utilitarian value of the offender's plea. Ms Davenport submitted that the discount should be 20% on the basis that the plea was entered as soon as material became available which strengthened the Crown case concerning the effect of the offender's epilepsy on the question of his substantial impairment. I do not accept that the utility of a plea of guilty is affected by the fact that, as here, the offender was entitled to wait and see what case the Crown had against him before deciding what course he should take. Of course the offender was entitled to do that and of course the offender was entitled to explore the possibility of successfully defending himself on a charge of murder, but that is a different issue to that which concerns the discount which should be allowed because of the utilitarian benefit of a plea of guilty.

49 Usually a plea of guilty on the day a trial is due to start leads to a discount in the order of 10% but in this case I propose to allow a little more, about 15%, because the issue to be run at trial was always to be a fairly limited one with there being no dispute as to many issues in the Crown case. That attitude by the offender did have a utilitarian benefit in the way the Crown prepared its case and in the time that the Court had to set aside for the trial.

50 Before I leave this topic I wish to say something about the approach of the Crown to submissions concerning the issue of the discount for pleading guilty. In submissions from Ms Davenport on this issue, she predicted that the Crown would not speak in opposition to a discount of 20%. She was proved correct. The Crown, in his submissions said that he did not agree with the suggestion that the discount would be 20% but did not wish to be heard further on the issue. When I pressed him, the Crown sought a short adjournment and upon the court resuming he said this: "consistent with what I told my learned friend, and perhaps not what your Honour wants to hear, I do not intend to make any further submissions".

51 I gather from what both Counsel told me that it had been agreed between them that the Crown would not argue against a discount of 20% to reflect the utilitarian value of the plea of guilty. Ms Davenport clearly had the best interests of her client in mind when she reached that apparent agreement with the Crown prosecutor. But it is an agreement which the Crown prosecutor should never have entered into, as it is, in effect, an agreement not to assist the Court by reference to binding principles and authorities. To that extent the agreement was inconsistent with the Crown prosecutor's obligations to the Court.

52 Crown prosecutors have been the subject of criticism from time to time, whether it be as a result of accepting pleas to manslaughter (see R v Maxwell (1994) 34 NSWLR 606) in cross examining an accused (see Liebke v The Queen [2007] HCA 30,) in final address (R v Kennedy [2000] NSWCCA 487, R v Rugori [2001] NSWCCA 64, R v MM (2003) 145 A Crim R 148, R v Livermore (2006) 67 NSWLR 659) and in the calling of witnesses (see R v Kneebone 47 NSWLR 450). Similar criticisms have been made overseas as well (see Boucher v The Queen (1954) 111 CCC 263) It is no part of a Crown prosecutor's function to reach an agreement with counsel for an accused that the Crown prosecutor will not assist a judge. It is inappropriate for a Crown prosecutor to decline to refer a judge to relevant principles and authorities, particularly so where those principles and authority might be necessary to correct a submission made by opposing counsel, simply because of an agreement that the Crown prosecutor has reached with counsel for the accused.

53 Ms Davenport asked that I find special circumstances. There were two main reasons she said that I should do this. The first was that this was the first time that the offender has served a sentence of imprisonment, whilst the second is that because of his medical condition the offender needs to be close to a hospital which means that he is incarcerated at a location with limited access to courses and rehabilitation facilities.

54 Whilst the fact that this is the first occasion where the offender has spent time in prison is capable of amounting to special circumstances, it does not follow that special circumstances are automatically found. And in relation to the offender's present custodial situation, the evidence suggested that, whilst perhaps not as good as the general prison population, the offender does have access to such things as alcohol and other drug rehabilitation services as he requires them.

55 I have declined to find special circumstances for three main reasons: Firstly the evidence suggests that, whilst not perfect, the offender does have access to services which would promote his rehabilitation even in the place where he is presently incarcerated: Secondly the sentence imposed upon the offender must necessarily be lengthy and an application of the statutory ratio results in a proportionally lengthy period of eligibility for parole: and thirdly, and perhaps most importantly, the non-parole period I have determined is the least which I consider properly reflects the circumstances of this case.

56 The offender is sentenced to imprisonment. The sentence is to have commenced on 24 October 2005, the date of the offender's arrest. I set a non-parole period of 15 years and a head sentence of 20 years. The offender is eligible to be released to parole on 23 October 2020.

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