R v James

Judgment 1HER HONOUR: On 9 July 2013, Anthony James was found guilty by a jury of the murder of Dana Lomas on 26 May 2011. The Crown case was that the deceased died of a single stab wound inflicted by the offender during a fight. The offender now stands to be sentenced for that offence. 2A person who commits the crime of murder is liable to imprisonment for life: s 19A of the Crimes Act 1900. The Court may nevertheless impose a sentence of imprisonment for a specified term: s 21(a) of the Crimes (Sentencing Procedure) Act 1999. 3The Crown did not submit that the offender's level of culpability was such as to warrant the imposition of a sentence of imprisonment for life: cf s 61 of the Crimes (Sentencing Procedure) Act. I consider that a sentence of imprisonment for life would be excessive in the present case. 4The offence carries a standard non-parole period of 20 years: s 54A of the Crimes (Sentencing Procedure) Act. The standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for the offence of murder. The "objective seriousness" of the offence for that purpose is to be determined wholly by reference to the nature of the offending and not by reference to any circumstances personal to the offender: Muldrock v R [2011] HCA 39 at [27]. With that understanding, the standard non-parole period guides the Court's discretion as one of the factors relevant to the determination of the appropriate sentence. My findings of fact recorded below will explain my reasons for departing from the standard non-parole period in the present case. 5It is my duty at this stage of the proceedings to find the facts material to the determination of an appropriate sentence. The facts found by me must be consistent with the jury's verdict. Any findings of fact against the offender must be arrived at beyond reasonable doubt. Any reasonable doubt must be resolved in his favour, but there is otherwise no principle requiring me to sentence the offender on the basis of leniency or the view most favourable to the offender: R v Isaacs (1997) 41 NSWLR 374 at 378. 6The deceased, Dana Lomas, was a male, previously known as Dale Lomas. He had chosen to adopt the name "Dana" and was observed at times to dress as a woman. He was the tenant of a two-bedroom house in Doonside. The offender moved into that house in about late May or early June 2010. It was clear on the evidence at the trial that their relationship was one of intimacy. They shared a bedroom from the time the offender moved in (T80.25, T89.20). The deceased told people that he was in love with the offender (T63.17, T83.21). Whilst the offender was evidently more guarded as to his feelings towards the deceased, I have no doubt that it was a close domestic relationship. 7One of the sisters of the deceased was living in the other bedroom of the house when the offender moved in. She continued to live there for about six months after that time. She said that the offender was quiet for the first couple of weeks but that the relationship soon became rowdy (T89.25). She heard verbal arguments between the offender and the deceased. She never saw any physical mistreatment of her brother at the hands of the offender but was told by her brother on a number of occasions that the offender had been physically violent towards him. She had seen both men smoking marijuana but was not aware of their use of other drugs. 8The deceased made a number of complaints to his sisters and friends of being "belted", beaten or hurt by the offender (T 61.37, T 63.14, T 64.26, T 84.30, T 86.40, T 102 to 103, T 111.7 and T 153.27). There was evidence that he had been hit with a piece of 4 x 2. His sister Eileen gave evidence of an occasion when the deceased said that the offender had chased him out of their home with a knife (T 100.34). 9There was also evidence of instances where the deceased had been aggressive towards the offender. One witness had seen the deceased chase the offender down the street with a metal pole (T 117.42). Another witness described an occasion when the deceased was trying to hit the offender with a piece of wood and telling the offender he wanted him out of his house (T122.26). The offender submitted, and I accept, that the relationship between the two men was a volatile one, becoming increasingly so in the weeks leading up to the death of the deceased. The evidence also established that, in the months leading up to that event, both men were using drugs and were short of money for other purposes such as to pay bills and for food. 10There was evidence from three witnesses of an occasion when a man was being chased down the street by the deceased holding a samurai sword or a machete. The offender submitted that I should be satisfied on the balance of probabilities that the person being chased on that occasion was the offender. I am not persuaded that that is the case. The descriptions given in evidence of the person being chased were at best equivocal (T143.30, T149.46) and in one instance inconsistent with the appearance of the offender (T130.3). Ms Mikhael, who appeared for the offender, noted the coincidence between the description by one witness of the man being chased as a man which she had previously seen looking into a truck at some scrap metal and other evidence in the trial that the offender was a collector of scrap metal. I do not think that is a sufficient basis to draw the conclusion contended for. 11I am satisfied on the strength of the evidence at the trial that the relationship between the offender and the deceased was close but often violent and volatile and increasingly so in the period leading up to the killing. I am further satisfied that the volatility of the relationship was probably fuelled by both men's use of drugs. 12On the day of his death, the deceased had used amphetamine. A statement was tendered (by consent) at the trial from his friend, Mr Michael McCluskey. He said they had pooled their money that morning to buy a deal of speed (T171.5). The evidence of a forensic pharmacologist, Dr Perl, was that the level of amphetamine in the deceased was within the toxic range (T325.4). 13An issue at the trial was whether the deceased was likely to have been in an aggressive state owing to his consumption of drugs that day. Dr Perl gave evidence that amphetamine affects people in two phases, first acting as a stimulant, producing effects such as excitability, alertness, talkativeness and agitation and then causing drowsiness and fatigue in what Dr Perl referred to as the withdrawal phase (T326). The amphetamine ingested by the deceased had been partially metabolised, indicating that at least some of it had been taken between 2 and 4 hours before death (not immediately before death). However, the possibility that some amphetamine had been consumed by the deceased closer to the time of the fight between him and the offender could not be excluded. Dr Perl gave evidence that, at such a high concentration of methamphetamine, it was possible that the deceased would be displaying argumentative and possibly aggressive behaviour. 14The offender had a "very low" or "recreational" level of methamphetamine in his system (T 343.20) that evening. There was no direct evidence that he had consumed amphetamines that day. I am satisfied on the balance of probabilities that the deceased was probably argumentative and prone to aggressive behaviour on the day of his death due to his ingestion of amphetamine. That does not, however, resolve the issue as to how the lethal fight began. 15Another issue of fact at the trial was whether the deceased was demanding that the offender move out of his house or whether the offender had made his own independent decision to leave. I am satisfied beyond reasonable doubt that the deceased had asked the offender on a number of occasions to move out. Whether or not the offender also wanted that outcome, or was at least resigned to it, I am satisfied beyond reasonable doubt that he did not do so within the time frame requested by the deceased and that there was rising tension between the two men on that account. 16In a letter to the offender found at their home, the deceased had said: "I'm tired of you kicking me in the teeth all the time. I've told you before that if you and Kelly [or "Kerry"] get back together I want you to move out. Stop lying to me or to yourself". 17Later that year, the offender told a psychologist that he had been dating his current girlfriend for 6 years (report of Dr Susan Pulman dated 15 December 2011). 18Michael McCluskey stated that, on the day of his death, the deceased had shouted at the offender "just pack your fucking gear and go, you're bringing me down" (T171.34). The offender did not move out of the house at that time. He spent a number of hours that afternoon with neighbours, returning to the deceased's house in the late afternoon. 19A neighbour gave evidence that she had spoken to the deceased at length and had a cup of tea with him until about 5pm on the day of his death. He told her that he had "told Tony that he had to be out by Tuesday". He was upset and swearing. She had told police that she had never seen Dale so angry (T115). 20A sales representative of a gas company was door-knocking in their street that day. He knocked on the door of the deceased's house at about 5.15pm (T174). He spoke at length to the deceased, who ultimately entered into a contract offered by the witness. Evidently as an afterthought, the deceased asked if he could also have the same deal for his sister, explaining that he paid the bills for her property. The evidence at the trial included recordings of two conversations the deceased had with a call centre confirming his entry into those two agreements. His voice on those recordings is slurred and slow and displays no agitation or aggression. 21The second call concluded shortly before 6pm and the sales representative left a few minutes later. The offender and the deceased must have started fighting almost immediately. 22There was no dispute at the trial that the offender stabbed the deceased, causing his death. The only real issue for the jury was whether that act was done in self-defence. The jury rejected that defence. There was no eye witness to the fight and the offender did not give evidence at the trial. He did answer questions from police later that evening but the jury evidently rejected his account. Even if it were open to me to take a contrary position, I also do not accept the version of events given to police by the offender. In my assessment, the only reliable evidence informing the likely course of events as the fight developed is the forensic evidence as to the injuries suffered by the two men. 23The offender sustained a number of severe cuts to his arms. The deceased sustained a fatal stab wound but also a number of additional injuries, including a fractured hyoid bone. It was accepted by counsel for the offender at the proceedings on sentence that the injury to the hyoid bone was inflicted by manual strangulation or compression but she submitted that was done in a defensive move. 24The Crown submitted that I would be satisfied beyond reasonable doubt that the deceased was defending himself from an attack by the offender when he picked up the knife with which he cut the offender's arms. The offender submitted that I would be satisfied on the balance of probabilities that the deceased was the initial aggressor. 25I am unable to make either finding to the requisite standard. 26The Crown posited that the wounds to the arms of the offender were inflicted by the deceased in defending himself from an attack. It was submitted that the Court would find that the offender easily disarmed the deceased and then took hold of him around the neck with one hand in a manual strangulation, compressing and fracturing the hyoid bone before inflicting the fatal stab wound. 27On behalf of the offender, it was submitted that the level of amphetamine in the deceased's system considered together with the evidence of witnesses who saw the deceased that day (particularly the evidence of the neighbour as to how angry the deceased was earlier that afternoon) would allow the Court to be satisfied on balance that it was the deceased who was initially the aggressor that night. 28Each of those contentions entails a measure of speculation. By the date of his death, the deceased was unequivocally demanding that the offender pack up his things and leave the house. The effect of amphetamine on him may have contributed to the aggression with which he said so. Conversely, however, as contended on behalf of the offender himself, the relationship was a volatile one in which fights were not unusual. I am simply unable to make any finding one way or the other as to how the fight between the two men started. What is clear beyond any doubt is that, once started, it escalated quickly and with intense ferocity, resulting in the fatal stabbing of the deceased. 29The Crown did not contend that the offender stabbed the deceased with the intention of killing him. The case was put by the Crown on the basis that the offender's intention was to inflict grievous bodily harm. That is the basis on which he is to be sentenced. 30The Crown noted that, whilst an offence involving an intention to kill is generally more serious than one involving an intention to inflict grievous bodily harm: R v Hearne (2001) 124 A Crim R 451 at [34]; R v Hillsley (2006) 164 A Crim R 252 at [16] to [17]. The degree of culpability in Hillsley was assessed to be high because the offence involved a "premeditated vicious attack of extreme violence on the victim in his own home". 31There was no suggestion that the stabbing of the deceased was premeditated in the present case. I am satisfied that the attack was not premeditated but occurred in the context of a domestic argument fuelled by the offender's failure to move out as requested and the complications of an already violent and dysfunctional relationship. I am satisfied on that basis that the degree of culpability in the offence is less than if the offender had intended to kill the deceased. 32The offender submitted, and I accept, that I should have regard to the extra-curial punishment suffered by him in the serious wounds inflicted on him during his fight with the deceased: Silvano v R [2008] NSWCCA 118 at [30]. 33The Crown accepted that the lack of any planning or premeditation of the offence is a mitigating factor in determining the appropriate sentence in accordance with s 21A(3) of the Crimes (Sentencing Procedure) Act. 34It is clear that the offender was extremely distressed at what he had done. At 6.08 pm, minutes after the offence, he received a telephone call from a friend, Mr Matthew Holmes. He said to Mr Holmes, "oh no, I've done something". Over the following hours, he told a number of people, including police, that he had stabbed the deceased. He was observed by all who encountered him that evening to be extremely distressed and upset, often sobbing uncontrollably. 35The Crown submitted that, although the offender was plainly distressed at what he had done, that is different from a finding on sentence that he has shown remorse. The Crown submitted that such a finding should not be made where an offender has not openly accepted responsibility for the offence charged. 36Section 21A(3)(i) of the Crimes (Sentencing Procedure) Act provides that remorse is a mitigating factor but only where the offender has provided evidence that he or she has accepted responsibility for his or her actions. Neither party referred me to any authority on this issue. On my reading of the section, I do not think the fact that the offender pleaded not guilty on the basis of self-defence precludes a finding that he has accepted any responsibility whatsoever for his actions. He has, from the outset, accepted responsibility for the act causing the death of the deceased, and expressed intense remorse for having committed that act. Whilst his remorse is not complete, nor is it non-existent, in my view, the offender has demonstrated some remorse. 37In determining the appropriate sentence, I am required to have regard, as aggravating factors, to the fact that the offence involved the use of a weapon and the fact that the offender has a record of previous convictions, including convictions for serious personal violence offences. The offender has 5 prior convictions for assault occasioning actual bodily harm and contravening domestic violence orders. The Crown tendered statements of the facts of two of those earlier incidents. They reveal a disturbing history of violence and nastiness towards previous partners. 38The offender did not give evidence at the proceedings on sentence. However, there was a substantial body of evidence before the Court as to his background. He was aged 50 years at the time of the offence and is now almost 52. He was one of eight children. He was raised in the region of Western Sydney. 39The evidence on sentence included a number of reports obtained at an earlier point in time as to whether the offender was fit to stand trial, together with material specifically obtained for the purpose of the proceedings on sentence. 40In a history given to Dr Susan Pulman, the offender described his upbringing as "horrifying" and "abusive" (see report dated 15 December 2011). Both his parents were alcoholics. His father was physically abusive towards him and his siblings. He reported having been sexually abused by boarders brought into the family home by his father. He was removed from the care of his parents at the age of 15 and placed with one of his older sisters by the Department of Community Services. He had very poor relations with both parents and has had little contact with most of his siblings throughout his adult life. He left school at the end of year 7 and has poor literacy. He was accidentally shot in the head at the age of 15 during a hunting accident. Neuropsychological assessment revealed that his overall level of intellectual functioning falls within the extremely low range, with his results falling at .4 of a percentile (meaning that he functions at a level equal to or better than only 0.4% of the normal population). A general ability test showed significantly and unusually better results, placing him within the borderline range and at the third percentile of the population. Dr Pulman thought that was likely best to reflect the offender's true intellectual capacity. 41In her initial report on the fitness question, Dr Pullman concluded "Mr James is a 49 year old man with a self-reported history of a deprived childhood including severe and repeated physical abuse, sexual abuse, limited education and scarce work history, multiple head traumas and long standing drug and alcohol abuse. He also described poor memory, comprehensive and expressive language difficulties, attention issues and poor literacy skills". 42Similar matters were reported in the other reports before the Court. The offender has recently been given a diagnosis of depression and anxiety. Dr Abeya also stated that his presentation was suggestive of schizophrenia. On 18 August 2013, Dr Olav Nielssen reported a diagnosis of substance use disorder and probable substance induced psychotic illness. 43In short, it may readily be concluded that the offender's upbringing of shocking deprivation and abuse has not been conducive to a functional, productive life and has brought him to a state of extreme psychological and emotional damage. His culpability for the present offence must be measured with an acknowledgment of the likely impact of such an upbringing. He has lost contact with most of his family, except for a supportive brother. I wish in that context to mention the role of the offender's carer, Mr Cutler, and Mr Cutler's family. On the strength of Mr Cutler's evidence at the proceedings on sentence and knowing the untiring support he offers the offender, I am satisfied that the offender's prospects of rehabilitation are considerably greater than they would be if he did not enjoy such support. 44Conversely, however, the Court must not lose sight of the seriousness of the offence. The offender viciously attacked and killed a man. Victim impact statements were read at the proceedings on sentence as to the impact of the offence on members of the deceased's family. Whilst the law does not entitle me to have regard to that material in determining the appropriate sentence, it is appropriate to acknowledge the immense grief suffered by the family of Dana Lomas and the courage and good grace with which they have faced the events of this trial. 45It has frequently been observed that the starting point for a consideration of the appropriate penalty for an offence of murder is the fact that it involves the taking of a human life. One of the objects of sentencing is the denunciation of that act and that is an important consideration. 46In all the circumstances, I consider the appropriate sentence to be a term of imprisonment for 21 years with a non-parole period of 16 years. The sentence will be fixed to commence before today to take account of the offender's pre-trial custody. 47Anthony James, I sentence you to a term of imprisonment with a non-parole period of 16 years commencing on 9 December 2012 and concluding on 8 December 2028 and a balance of term of 5 years concluding on 8 December 2033. The first date on which you will be eligible for release to parole is 9 December 2028.