R v Lane

Offences to be taken into account

1. The offender has asked that his guilt in respect of two offences listed on a Form 1 document be taken into account. The first is the assault of Mr Schwager which caused Mr Schwager actual bodily harm. That is an offence which is contrary to s 59(1) of the Crimes Act 1900 (NSW) and has a maximum penalty of imprisonment for 5 years. The second is an assault occasioning actual bodily harm upon a Mr Cody Roberts just after midnight the same night.
2. The offence concerning Mr Schwager was the incident when the offender struck Mr Schwager when he was seated in the gutter. Mr Schwager suffered injuries to his right cheek and forehead and swelling to the left side of his head. Photographs indicate that they were not major injuries, but they were not trivial either.
3. The offence concerning Mr Roberts was entirely unrelated but occurred about an hour later. The offender drove to another location in Casino where a taxi arrived with a number of passengers who had all previously been at the Commercial Hotel. Mr Roberts was one of them and he was not known to the offender. As Mr Roberts alighted from the taxi, the offender grabbed him and threw him to the ground. While he was then on top of Mr Roberts he grabbed the sides of his face and ears and bit the top of his forehead. They continued to struggle and the offender then bit him a second time to the neck. The agreed facts include that "this assault was unprovoked". Photographs indicate the injuries were not trivial, but not major.
4. The manner in which additional offences are taken into account is well known in the criminal law. The principle is that it remains the task to sentence only for the principal offence but additional offences are taken into account with a view to increasing the penalty that would otherwise be appropriate by giving greater weight to personal deterrence and retribution.

Seriousness of the offence

1. I agree with what Campbell J said about the seriousness of the offence of manslaughter: "The features of the present case which lead me to conclude it is an objectively serious one include that the crime was committed in a public place when the offender was very intoxicated. [I interpolate that I do not regard that as a mitigating feature.] While there was some initial willingness on the part of Mr Morris to engage in an altercation with him, and indeed grapple with him [but only after the offender turned back and approached him quickly], the offender escalated the aggression even after Mr Morris sought to disengage himself from the fracas. The punch that felled Mr Morris for the second time was deliberate. I am satisfied that it was delivered with intent to inflict some appreciable harm but, given the jury's verdict, not really serious injury. The force involved was sufficient to knock Mr Morris off his feet. However I find that the brain injury suffered occurred when Mr Morris's head hit the ground; the force of the punch was not sufficient of itself to cause that injury. The offender did not attempt to render any assistance, even if it would have been pointless because of the seriousness of the brain injury. He did not show any remorse for what had occurred, but simply walked away."

Family victim impact statement

1. A family victim impact statement was provided by Ms Anita Johnston, one of Mr Morris' children. I gather that Mr Morris was devoted to his family and was adored by his children and grandchildren. Their loss is difficult to describe and the pain and sadness endures. It has no doubt been made worse by the fact that the legal proceedings have been drawn out for so long. It is hoped that this is the end of that aspect of the matter and Mr Morris' family can focus more upon remembering the wonderful person he was and the contribution he made to their lives. I extend my sympathy to them all.
2. The Crown has asked that I take into account the impact that Mr Morris' death has had upon his family as part of the harm caused to the general community. Senior counsel for the offender did not oppose this and I will.

History of the proceedings

1. A major issue in considering the appropriate sentence to impose in this case is the substantial delay between the crime and the arrest in 2012 and the sentencing which is occurring now over six years later.
2. The chronology is set out in this table. 15.9.12 The offender killed Mr Morris 17.9.12 The offender arrested. Bail refused. 23.10.13 Bail granted and offender released 3.12.13 Committal for trial 7.3.14 Trial date of 7 October 2014 fixed 24.9.14 Offender offered to plead guilty to manslaughter. Offer rejected. 7.10.14 Trial commenced before Campbell J and jury. 27.10.14 Jury found offender not guilty of murder but guilty of manslaughter. Offender remanded in custody 27.2.15 Offender sentenced to 8 years 6 months with a non-parole period of 6 years 4 months 17.6.16 Offender filed notice of appeal against conviction 21.10.16 Court of Criminal Appeal heard appeal against conviction 22.3.17 Judgment of Court of Criminal Appeal: appeal dismissed 20.6.18 Judgment of High Court of Australia: appeal allowed; conviction quashed; retrial ordered 3.7.18 Offender released on bail pending retrial 3.8.18 Offender arraigned and pleaded not guilty to manslaughter. 8 October 2018 fixed as date for retrial (estimate 2 weeks) 25.9.18 Crown notified that offender would plead guilty 9.10.18 Offender entered plea of guilty to manslaughter

1. The first of a number of issues that arise from this history concerns the fact that Campbell J accepted a Crown concession and reduced the sentence he would otherwise have imposed by 15% on account of the "utilitarian value" of the offender's offer to plead guilty which was made two weeks before trial but rejected by the Crown. [1] In circumstances where the offender asserted at his trial that he was not guilty of both murder and manslaughter (he claimed that the death was not the result of a voluntary act by him, alternatively he was acting in self-defence [2] ) I fail to see how the offer had any utilitarian value to the efficiency of the criminal justice system. If the offender had conducted the trial on the basis that he was not guilty of murder but guilty of manslaughter he would not have been entitled to any greater discount. Why the Crown conceded that the offender should receive the same benefit as a person who conducts a trial on that basis is not apparent.
2. The second issue is that the Crown now maintains that it is appropriate that the offender receive a sentencing discount of 15%. It submitted that while the utilitarian value of the offer to plead guilty on 24 September 2014 was largely eroded by the subsequent appeals, those appeals were contended by the defence and accepted by the Crown to have been on a "technical issue" which should not disadvantage the offender.
3. The issues on the appeal related to how the judge directed the jury; an assertion that the Crown misled the jury; and asserted misconduct by one or more members of the jury. One of the grounds of appeal was upheld but the Court of Criminal Appeal dismissed the appeal because there was no substantial miscarriage of justice. The High Court disagreed on that last aspect and allowed the appeal.
4. I cannot understand how it can make a difference what the bases of the appeal were. What is known, however, is that the offender embraced legal advice that he had grounds of appeal against his conviction and it seems that he did so with enthusiasm. There could have been only one purpose in pursuing the appeal - to have the conviction and sentence quashed so as to obtain another chance at defending the matter at a retrial with the hope of being acquitted outright. I cannot envisage that the offender was only appealing in order to have the law on some technical issue clarified for the general benefit of the criminal justice system.
5. An affidavit by the offender's solicitor was read. The annexures to the affidavit are from the solicitor's file and they show that the offer to plead guilty to manslaughter that was put to the Crown in September 2014 was made on the advice of a senior counsel who was then acting for the offender (not Mr Ozen SC who appears now). In a conference on 23 September 2014, counsel suggested that it would be a pragmatic thing to do, and if the jury were to find him guilty of manslaughter he would be able to ask for a sentencing discount. Nothing is recorded in the solicitor's notes of the conference, and there is no evidence otherwise, that suggests that the offender was prepared to concede that he was in fact guilty of manslaughter.
6. The offender signed written instructions but they contain nothing to suggest that he acknowledged his guilt of manslaughter. Indeed, it was obviously apparent to counsel that the offender was not prepared to acknowledge his guilt of manslaughter because he suggested that the offender cross out and initial a paragraph in the pre-prepared written instructions which would otherwise have instructed that he would plead guilty to manslaughter in front of the jury and only defend the charge of murder. The written instructions were amended by the offender in the way suggested.
7. So, there is nothing to indicate that the offer to plead to manslaughter derived from a genuine preparedness to do so; it was only something done in the hope of achieving a sentencing advantage in the event the jury returned a verdict of guilty of manslaughter. Senior counsel told the offender that in signing the written instructions, "this doesn't mean you have to take up the offer".
8. What might have happened if the Crown accepted the offer will never be known. What is known is that the Crown rejected the offer and the trial proceeded with the offender disputing that he was guilty of both murder and manslaughter.
9. The records from the solicitor's file also shed light on the offender's decision to pursue an appeal. There are notes taken in conference on 17 December 2014 concerning a jury irregularity issue that arose from material found by a Sheriff's officer in the jury room when it was being cleaned up after the trial. The conference was generally concerned with whether an application should be made to the judge to order an inquiry by the Sheriff into possible juror misconduct which may give rise to a ground of appeal against conviction. The notes attribute to the offender statements including that his family had caused the CCTV footage to be enhanced and "it shows I never touched the bloke" and, "I'm prepared to run the gauntlet as I believe I'm innocent, 100%".
10. I digress to observe that sixteen days before making those comments to his lawyers, the offender was interviewed by Ms Anna Robilliard, a forensic psychiatrist who had been engaged to prepare a report for the upcoming sentence hearing. The offender told her, "This eats away at me. I have to live with it … I feel that the remorse is going to kill me." She also reported that "he frequently thinks of the victim's family and hopes they can find it in their heart to forgive him".
11. There is a utilitarian value in the plea of guilty that was entered on 9 October 2018. It saved the need for a 2 week trial. However, it came after a tortuous process of the offender disputing his criminal responsibility for causing the death of the deceased for more than six years. I will reduce the sentence I impose by five per cent (with some rounding down to achieve a practical result).
12. The third aspect of the history is the significance of delay. It was submitted that in accordance with authorities dealing with such an issue (e.g. R v Todd [1982] 2 NSWLR 517) I should approach the task of assessing sentence with "a considerable measure of understanding and flexibility of approach" and that it might be necessary to extend to the offender an "undue degree of leniency". The submission must be rejected. The offender could have accepted the verdict of the jury in October 2014 but he exercised his right to challenge it. I emphasised at the hearing on Monday that he is not to be punished for that. But four years have elapsed and he now, finally, accepts his guilt. He cannot derive any benefit on sentence for causing such delay.
13. A fourth aspect of the chronology is the fact that the offender is now liable to be returned to custody. I will say more about that after I discuss a number of matters relevant to his personal circumstances.
14. Finally, the offender is entitled to have the period in which he has been held in custody in respect of this matter taken into account. Usually that is done by way of backdating the sentence. It is agreed that the period of 17 September 2012 to 23 October 2013 (1 year 1 month 7 days) and 27 October 2014 - 3 July 2018 (3 years 8 months 7 days) amounts to 4 years 9 months 14 days and that the sentence should therefore be backdated to 28 February 2014.

Personal circumstances of the offender

1. The offender did not give oral evidence on sentence. Evidence as to his background and personal circumstances was provided by way of various documents tendered by each of the parties and an affidavit by the offender was read. Some of the language used by the offender and a former partner is rather extravagant, even melodramatic. However, the Crown did not object or in any other way seek to challenge the history so I will accept its basic elements.
2. The offender was born in 1959. He has a criminal record. At the time of the offending it comprised a fraud committed in 1999 for which he received a good behaviour bond; a drink driving offence in 2012 for which he received another bond; and an offence of cultivating cannabis by enhanced indoor means for commercial purposes in 2012 for which on 24 October 2013 he received an intensive correction order for 20 months. It is not much of a record and there is no prior violence. However, he cannot expect the same leniency as would be extended to a first offender.
3. It is an aggravating factor if an offender commits a crime whilst in the community under some form of conditional liberty. [3] In this case the offender was subject to a bond that required him to be of "good behaviour". He was also on bail in respect of the cannabis cultivation offence.
4. Ms Anita Duffy, forensic psychologist, was briefed with a number of relevant documents and she interviewed the offender on 26 November 2018. The history he gave included that his parents moved to Ballina over a decade ago. His father died last year while the offender was in custody. His mother is now aged 85 and suffers a variety of ailments including, according to her GP, "moderate to mild dementia" and declining mobility. The offender has been living with her since he was released from gaol in July. The GP described him as looking after his mother "well" and said that she "seems to be very happy now".
5. The offender has three sisters. Two live locally (at Ballina and Lennox Head) and there is no information about the third except that she is a real estate agent.
6. The offender was married some time ago but his wife left him in 1999, leaving him to look after their two sons. The separation was reportedly distressing for him and he has taken a long time to recover. In more recent times he has been in a relationship with Ms Vicki Ahearn but they separated while he was in gaol.
7. The offender's employment has been mainly in car and motor bike sales and auto parts businesses. He moved to the North Coast after his marriage failed. In January 2001 he was involved in a serious motor accident in which he sustained broken bones and a head injury. He suffered from significant deficits in his memory and cognitive function which Ms Duffy said "continued to affect him" (although for how long is not stated). An insurance claim was settled some years ago.
8. The offender told Ms Anna Robilliard in her interview with him on 1 December 2014 that his personality changed after the accident in 2001 such that he began to consume alcohol and cannabis to excess; changed his appearance with long hair, earrings and tattoos; and became obsessed with building motor bikes. He told Ms Robilliard that he was drinking daily, often a bottle of rum a day prior to his arrest. He smoked cannabis regularly and heavily, often in conjunction with alcohol. However, he claimed not to have consumed any alcohol or drugs since his release on bail in 2013.
9. The offender told Ms Duffy that he suffered symptoms of depression in 2000 after his wife left him but they worsened after the accident in 2001. He saw a psychiatrist and a psychologist up until 2004 when insurance funding ceased. They expressed opinions of him having symptoms of post-traumatic stress disorder, adjustment disorder with depressed mood and anxiety as well as chronic pain.
10. The offender told Ms Duffy that he had been diagnosed with Bipolar Disorder by a psychiatrist in 2013 when he was released on bail. (This may be a reference to Mr Chris White, psychologist. [4] )
11. Ms Duffy noted from Justice Health records that the offender had seen a Dr Hearps in 2012 and 2013 who diagnosed depression and prescribed some medication for it. He recommended that the offender see a psychologist.
12. A significant part of the offender's subjective case is concerned with his experience in custody. He claimed in his affidavit that he was exposed to the most inhumane treatment, including having been assaulted; placed in cells that were putrid; regularly, and often daily, had his meals and his property stolen. He described being forced to endure the humiliation of being strip searched by guards after visits, or "at any time". He said that when he asked to see a doctor he was told that it would take months. He said that treatment like this lead him to a point where, he said, "I couldn't function. I couldn't do anything. I couldn't read. I couldn't write. I couldn't do anything."
13. The offender also said that "all day I would think about Mr Morris and his family". He said that he "could not find the words for how remorseful" he was; and "every day every night [he] could not think of anything else".
14. After recounting those matters, the affidavit next says that "I was then sent to Long Bay jail". The custodial history shows that he was at the Long Bay Hospital for most of the period of March to August 2013. There he "begged to see a doctor" but was told "this would take some time" and "months went by and things only got worse". He tried going on protection but that was no better. He was then transferred to "21 wing" but found "this was for all mad people" which sent him "over the edge". There he was put in a cell with "no clothing at all, no bedding at all and the cell was covered in blood all over and human faeces on the floor and walls". He was given only three meals in the seven days he was in that cell.
15. The offender went on to say that it was six or seven months later when he got to see a doctor. He was told he had PTSD and given medication which helped. However, the medication was often taken from him by other inmates.
16. Other matters the offender claimed to have endured included inmates who flooded cells with water; masturbated in front of him; cut their wrists; and defecated on the floor and rubbed it all over the walls. He saw the bodies of two young boys who hanged themselves as well as seeing people beaten up and killed. He claimed that it was not just inmates who assaulted and stole from him; he was also "stood over and abused by the guards" and deprived of his medication by them too.
17. As extravagant as the description of these incidents might seem, none of it is disputed by the Crown. The affidavit constitutes evidence and the Crown Prosecutor responded in the negative when asked if he wished to cross-examine.
18. It is difficult to reconcile what the offender said in the affidavit (and to Ms Duffy) about his experience of prison with what he told Ms Robilliard who interviewed him on 1 December 2014. According to his affidavit, by this stage he had endured the horrors he described from his arrest in September 2012 until he was released on bail in October 2013 and then again in the period following bail being revoked on 27 October 2014 pending sentence. However, Ms Robilliard said that compared to his initial ID photograph dated 17 September 2012 "he appeared to have put on weight" and he "looked healthy and well". He had been prescribed psychoactive medication and his mood had become stable: "In his opinion his 'real personality' has re-emerged since he has been in custody. He said he feels like a different person and likes who he is now. He stated that 'I'm a good person. I can be successful in business, I feel I have a new life."
19. Under a heading "Adjustment to Imprisonment", Ms Robilliard wrote: "Mr Lane said he feels like 'a senior citizen in custody'. He said he isolates himself as much as possible from other inmates to avoid hearing conversations about crime and drugs. He said he gets along well with the prison officers which alienates him further from other inmates."
20. The offender's complaint about not being able to see a doctor for a considerable period after he went into custody in 2012 may be contrasted with the following part of Ms Robilliard's report: "Since he was charged with the index offence Mr Lane's mental health has been thoroughly assessed and managed. His Justice Health notes on admission (24 October 2012, 8 November 2012, 20 December 2012) described him as anxious about his poor memory mood swings and depression. Dr Hearps, psychiatrist, assessed him on 9 January 2013, 20 March 2013, 3 April 2013, 4 April 2013, 13 May 2013 and placed Mr Lane on antidepressant medication (fluoxetine) which was increased from 20 to 30 milligrams over that time. He has had a good response to medication and by 13 May 2013 Dr Hearps noted much improved mood and sleep and the client reported feeling like 'a new person'."
21. There is not a word in Ms Robilliard's report dated 22 January 2015 about any of the horrific things described in the offender's affidavit or Ms Duffy's report, both dated 30 November 2018. Nor is there anything in the testimonial by his former partner dated 22 December 2014. Nevertheless, as I have said, the Crown does not dispute it.
22. The affidavit also includes that the offender has found it difficult to adjust to life in the community since he was released after his successful appeal. He lives with his elderly mother and does everything for her. Aside from that he has no desire to go back into business because he does not have the drive or even the ability to think anymore. He does not trust anyone. He finds it hard to leave the house unless he has to. He attends a gym but goes at 3 or 4 in the morning when there is no-one there.
23. The offender has been attending weekly or fortnightly upon a psychologist, Mr Chris White, under a GP mental health care plan since his release in July 2018. Mr White also saw the offender on a similarly regular basis for about eight months in 2014. Mr White wrote that the offender's "mental health has substantially deteriorated over the past 4 years" and that he "currently experiences severe-extreme levels of anxiety and depression associated with [Bipolar Affective Disorder and Post Traumatic Stress Disorder] which profoundly restricts his ability to cope with life's daily demands".
24. Mr White's report includes that the current psychological treatment is restricted because of the ongoing legal proceedings and the threat of further incarceration. (Of course, this is largely the product of choices the offender has made.)
25. Ms Duffy administered some short questionnaires by reading them out to the offender over an AVL link. She said the results on a Depression, Anxiety and Stress Scale were indicative of high levels of each attribute. There were also high scores on a test for PTSD.
26. Overall, Ms Duffy considered that the offender suffered from Major Depressive Disorder and Post Traumatic Stress Disorder in response to his experiences of arrest, charges and incarceration following the death of Mr Morris. Prior to this there was the emotional upheaval after the breakdown of his marriage almost 20 years ago and the significant injuries sustained in an accident not long after that.
27. Mr Duffy offered the opinion that if the offender was returned to custody he would need close monitoring and intervention by Justice Health because he was vulnerable to further emotional destabilisation and risk of self-harm. She said he required comprehensive treatment for his mental conditions.
28. A number of testimonials were tendered. Two by the offender's former partner, Ms Vicki Ahearn, contain a number of opinions of a medical and legal nature which I am not prepared to accept. Otherwise, hers and the other testimonials speak to a number of admirable personal qualities of the offender (for example, his kind and caring nature and the positive father-figure role he has played with Ms Ahearn's children) which I will take into account. Interestingly, one of the authors "suggested" in her testimonial of 28 September 2018 that "the intention of the prison system to support offenders in 'seeing the error' of their ways has in this instance with Paul been largely successful".

Remorse

1. I accept that the offender regrets the death of Mr Morris. I have previously referred to what he said in his affidavit about being remorseful but it bears repeating. In the context of where it appears in the affidavit it relates to a time before his trial in October 2014: "All day I would think about Mr Morris and his family. I could not find the words for how remorseful I am. Every day every night I could not think of any think else."
2. Subsequent to that, he disputed his guilt at trial and pursued appeals against his conviction, telling his lawyers that he was "innocent, 100%".
3. I accept that such claims of remorse have been made, including to the authors of reports and testimonials, but they are not worthy of much weight when regard is had to the history of the proceedings and the inconsistent statements he made to his former lawyers.

Prospects of rehabilitation and unlikelihood of reoffending

1. Despite what I have just said, I am satisfied that the offender has quite reasonable prospects of rehabilitation and that he is unlikely to reoffend. The present offence is the only one of violence in his record and it was not one which involved premeditation or any specific intent to cause harm. Moreover, the offender seems to have eschewed drugs and alcohol and hopefully that remains the case in the future.

Hardship to mother

1. I accept the evidence that the offender has been living with his elderly and frail mother and providing her with care in relation to her daily activities. Her general practitioner has commented favourably about this. Fortunately there are at least two of the offender's siblings who live in the near vicinity to their mother. I assume they would be in a position to provide some assistance, as I assume they were before the offender was released last July, but I expect it would not be on the full-time basis of the assistance the offender has been providing.
2. Senior counsel did not contend that returning the offender to prison would entail hardship to a third party that was exceptional but I accept the submission that it remains a relevant aspect of the offender's subjective case.

Other aspects of sentencing

1. The various purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act. In cases of alcohol-fuelled violence such as this, general deterrence is of particular significance. It is also important to recognise the harm caused and to provide for a sentence that reflects the need for punishment, denunciation and making the offender accountable for his actions. I have also had regard to the rehabilitation needs of the offender. I accept that his mental health has deteriorated as Mr White has observed and he has an ongoing need for psychological counselling and treatment.
2. A particular matter that I consider is relevant to the assessment of sentence is the fact that this is the third time for the same matter that the offender has faced the prospect of going to gaol. I accept that he has experienced a degree of trepidation about returning to custody and that provides punishment in itself. Moreover, I am prepared to accept that serving a custodial term interspersed with periods in the community with the knowledge that a return to custody is in prospect is probably more onerous that serving an uninterrupted term.
3. It was submitted that there are special circumstances that would justify a reduction in the proportion of the sentence represented by the non-parole period. The special circumstances relied upon was the combination of the hardship to the offender's mother, the delay issue and the hardship the offender had experienced in custody in the past.
4. I have already indicated my thoughts about the first two of those matters. As to the third, whilst there are problems with the evidence I am prepared to proceed upon the basis that the offender experienced harsher custodial conditions than is usually the case for some part of his prior incarceration. I have also said that I accept the deterioration in his mental health. However, these are all matters that have been considered and taken into account in the assessment of the overall sentence and I do not think they have any further contribution to make in the determination of the non-parole period. It should be noted as well that the non-parole period I will be setting is what I consider to be the least period the offender should serve having regard to the gravity of the offence and all of the other circumstances of the case.

Ceiling principle

1. There is a sentencing principle based upon a rationale that the criminal justice system should not be perceived as punishing a person for successfully pursuing their right to appeal and thereby discouraging others from doing so. Accordingly, it is the general, although not inflexible, rule that a person should not be punished more severely when they come up for sentence again after having overturned on appeal an earlier conviction and sentence. [5]
2. I have taken the approach that I should assess the sentence I consider should be imposed and then stand back and compare it to that which was imposed by Campbell J in order to assess whether any adjustment should be made in the light of this "ceiling principle". In other words, it is not a matter of starting with the sentence his Honour imposed and then making adjustments up or down to account for subsequent events. In the end, no such adjustment was required as my assessment was of a sentence that has start and end points which are both less than those assessed by his Honour.

Sentence

1. Convicted. Taking into account the two offences listed on the Form 1 document, the offender is sentenced to imprisonment comprising a non-parole period 6 years with a balance of term of 2 years. The sentence is to date from 28 February 2014 and so the offender will become eligible for release on parole when the non-parole period expires on 27 February 2020. That is a total sentence of 8 years which, without the plea of guilty, would have been one of 8 years 6 months.

Endnotes

1. R v Lane (No 3) [2015) NSWSC 118 at [63]
2. Lane v R [2017] NSWCCA 46 at [10]
3. Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(j)
4. See report of Ms Anna Robilliard at [11]
5. R v Gilmore (1979) 1 A Crim R 416; R H McL v The Queen (2000) 203 CLR 452; [2000] HCA 46 at [72] 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. Decision last updated: 12 December 2018