R v Knight

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SENTENCE 1 HIS HONOUR: The offender, Mark Dempsey Knight, was found guilty by a jury of the murder on 27 March 2000 at Bathurst of Craig Brookes Dally. The offender and the deceased were fellow inmates at Bathurst gaol. Not long before he was killed, the deceased had been transferred to a cell in the wing where the offender was housed. On the morning of the day of his death the deceased told a friend of his that he wished urgently to move back to the wing he had previously occupied. He said that he was sick and tired of being "hit up" by kooris for tobacco. The offender is a member of the Aboriginal race, but the deceased did not mention his name. Apparently there were other Aborigines in the same wing. 2 The offender and at least one other inmate entered the deceased's cell and stabbed him repeatedly with a sharp instrument. There were twenty identifiable stab wounds to the neck, chest and abdomen. Three closely grouped wounds in about the middle of the chest were probably the most serious. The deepest of them was eighty-five millimetres long and damaged the heart and the aorta. The deceased put up a struggle. All over his hands, fingers and forearms were wounds his attackers caused as he tried to defend himself. During the attack the offender's right hand was pierced through and bled freely onto the floor of the deceased's cell and the boots the offender and a companion were wearing. 3 The offender took part in an interview with the police. He told them that he had entered the deceased's cell to ask for tobacco. He had seen others in the cell, each of whom he referred to as "old mate". Part of what he told the police suggested that he had seen two people, part three. He named none of them. He said that one of them had pushed him and had pierced his hand with what he called a "gizmo". Everything he said was calculated to protect the identity of the attackers and to exculpate himself. The jury rejected that version. 4 The evidence shows that there were at least two attackers. No weapon was found. The number of stab wounds and cuts on the body of the deceased suggests that the attackers had more than one weapon, but it is not possible categorically to say so. The jury were told that they could find the offender guilty if he took part in the attack or was present, assisting or encouraging it or standing by ready to assist. 5 In view of the number of injuries inflicted and the various parts of the cell where the offender was from time to time, judging by the places where his spilt blood was found, the only conclusion I can come to is that he played an active role in the attack. Such an active participation in an armed attack by two men on one encompasses a high degree of criminality. It would be no less even if the offender was not himself armed, such was the role he must have played. 6 There is no evidence why the offender killed the deceased. Even if there was a difference of opinion about tobacco that would scarcely explain such a savage attack. 7 When interviewed by a Probation and Parole officer for the pre-sentence report requested by his counsel, the offender maintained his innocence. He said that he had been framed but declined to discuss the detail of the matter. He added that he was not prepared to put his life at risk by assisting the police. 8 The offender was born on 22 December 1964, so he was thirty-five years old at the time of the offence and is thirty-nine years old now. He was a member of a stable and highly regarded family, originally from Bourke but long time residents of the Wentworth area. According to the pre-sentence report, the members of the offender's family were law-abiding, progressive members of the community. The offender's eldest sister is a church minister who has a particular concern for the rehabilitation of offenders after their release from custody. The offender has frequently referred such persons to her for assistance. 9 The offender is described as having been a bright and well adjusted child. He had the advantage of a good upbringing. His family have been surprised and hurt by his offending. They find it difficult to accept that he murdered the deceased. The offender told Ms Robilliard, psychologist, that he had been accelerated through secondary school because he was academically gifted. That put him out of step with his class mates and made him feel ill at ease. He wanted to feel normal and felt pressure to perform well. He responded by becoming lazy. He had a deep interest in music which he wanted to pursue. When he was sixteen years old he was accepted into a music program in Adelaide and began to undertake it, but left after a few weeks because he was homesick. After that he lost his motivation to study and began to take drugs. He has a former partner and two children and keeps in touch with them. He is in regular contact with his parents, brothers and sisters. 10 The offender left school after year ten and did a TAFE course. He has had casual unskilled work. During the 1980s he was dealt with for a number of property offences, probably drug-related, and for the use of drugs. There were also an assault and a number of firearms offences but, judging by the lenient sentences imposed, they were probably not especially serious. During the 1990s he was in Queensland and his family lost touch with him. He was dealt with for a number of drug and drug- related property offences and short terms of imprisonment were imposed. During 1994 he was sentenced to concurrent terms of eighteen months' imprisonment for breaking, entering and stealing with actual violence while pretending to be armed with a dangerous weapon. In 1995 he was sentenced to imprisonment for nine years for stealing with actual violence while armed with a dangerous weapon. In 1997 he attempted to escape from lawful custody. There were other offences as well. Altogether he has been convicted of eight offences of violence, six of which involved the use of weapons or the pretence of being armed. They included three armed robberies. 11 In 1999 the offender was transferred to the New South Wales prison system to serve the balance of his Queensland sentences in this State. He was awaiting a transfer to Broken Hill Correctional Centre when he murdered the deceased. 12 According to Ms Robilliard the offender is in the upper end of the average range of intelligence. He has a schizoid and anxious personality and is showing avoidant behaviour. He tends to be solitary and private. Ms Robilliard considers that there is no evidence of profound psychopathology of antisocial or aggressive type. However that last opinion may be, I am bound to conclude from the offender's history and his having committed this offence that he does not hesitate to behave aggressively when it suits him. 13 Mr McDermott, counsel for the offender, drew attention to the special considerations that sometimes accompany the sentencing of Aboriginal offenders. They were set out in R v Fernando (1992) 76 A Crim R 58. 14 I apprehend, however, that those principles are concerned with Aborigines who have been brought up in disadvantaged circumstances, have been denied opportunities to develop knowledge and job training and have been subjected to the evils of alcoholism and the violence which often accompanies it in aboriginal communities. There is no evidence that the offender has suffered disadvantages or deprivation of the kind that prompted the remarks of the Court in Fernando. On the contrary, he had a good start in life with intelligence, good opportunities in school and tertiary courses, all backed up by the support of a fine family. He turned his back on his opportunities and resorted to a life of drugs, dishonesty and violence. He alone is responsible for the decision he made. 15 The murder of the deceased was a wicked and violent act. The offender must have known that that was what he was about when he went to the deceased's cell. It could not have been any accident that there were a weapon or weapons there with which to attack the deceased. The deceased was outnumbered. The intent was to kill. The attack was sustained and the injuries many. An injury to the neck, which I am satisfied was inflicted after the principal wounds that I have described, slit the throat wide open, severing the major arteries and veins on both sides of the neck and marking the anterior surface of the spinal column. That wound alone bespeaks great savagery. This offence was for these reasons a serious one of its kind. 16 The offender's statement to the Probation and Parole officer that he would not risk his life to assist the police is a matter of some moment. Although it accompanied an untrue denial of responsibility, I do not doubt that it was true. There is a code of silence which discourages gaol inmates from informing police about crimes committed by other inmates and from giving evidence about them. Those who do risk punishment, perhaps death. As a result, a substantial portion of gaol murders go unsolved. 17 The community has an interest in the rehabilitation of gaol inmates. For that to happen they must be able to serve their sentences safely and constructively. Yet they are particularly vulnerable people. They have no choice about where they live or work. They cannot choose the company they keep. Experience suggests that the system of protection which operates in the gaol system can never be a complete answer to the risk of violence perpetrated by inmates on inmates. It would be impossible to place every inmate on protection. In imposing sentences for offences committed on gaol inmates, the Court must therefore impose salutary sentences calculated to discourage such offences in recognition of the vulnerability of gaol inmates and to promote the community interest in the rehabilitation of offenders. 18 These remarks should not be understood as implying that the sentence I shall impose upon the offender is being increased because he chose not to assist the police. It is being increased because of the special need to discourage the commission of violent offences upon gaol inmates. Nor do I intend to suggest that the deceased was killed because he in some way failed to observe the code of silence. There is no evidence to show why he was killed. 19 The offender is not sorry for what he has done and continues to deny his offence. He appears to have become well established in the gaol system, though I am reluctant to conclude that he may not lead a useful life in the community on his eventual release. By the time he becomes eligible for release on parole he will be almost at the end of middle age. He will be a different man. I would hope that long before parole he would be housed in the far west of New South Wales where he could have the beneficial influence and support of his family. I think that there are some prospects of rehabilitation.

20 It was not submitted that there were circumstances which justified the fixing of a parole period which exceeded one quarter of the head sentence. I do not think that such circumstances exist. I have not overlooked the fact that the sentence I am about to impose will be accumulated on other sentences. Such accumulation sometimes justifies an adjustment of parole and non-parole periods but it does not in the present case because no non-parole period shorter than the one I shall impose would be sufficient to recognise the seriousness of the offence. 21 The offence was committed during the non-parole period of the Queensland sentences. They expired on 16 April 2002. On 12 February 2001 the offender escaped a second time from lawful custody and was sentenced to imprisonment for a fixed term commencing on 19 April 2002 and expiring on 18 January 2003. The parole period of the Queensland sentences is still in force, but as far as I am aware there has been no formal revocation of parole. It would ordinarily have been appropriate, therefore, to commence the sentence from 19 January 2003. However, one of the police officers who had an important part to play in the investigation became too ill to continue with his work, and that may have been the cause of an inordinate delay in the charging of the offender. Although the offence took place in March 2000 he was not arrested and charged until September 2002. Because that delay was no fault of his I have selected a commencement date six months earlier.

22 Mark Dempsey Knight you are sentenced to imprisonment for a period of twenty-two years. Your sentence will be taken to have commenced on 19 July 2002. I fix a non-parole period of sixteen years and six months. You will become eligible for release on parole on 18 January 2019.

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