Dr Lucas
59According to Dr Lucas, the Prisoner said that "when he was 11 or 12 he started to go to Mr Kemlo's place". At first Mr Kemlo used to hold his hand and put an arm around him. As time progressed, using his words, "he started to touch me in other places". Asked what he meant he said "Mr Kemlo put his hand down his pants". He said "they then ended up having sex". Asked when that was, he said "probably after a few years". Asked what it involved, he said "making me have anal sex, put my penis in his bum". Asked where this occurred, he said "in the house, in the loungeroom and the bedroom". The frequency was probably three times a week. I asked what other sexual activity there might have been and he replied "just putting penis in his bum". I pushed the issue and he then replied, Mr Kemlo had done the same to him when he was 13 or 14.
60Because the issue of sexual abuse is one which goes to mitigation, the onus of establishing it lies on the Prisoner. Given the extent of his lying and the degree of inconsistency between his accounts, and subject to the following remarks, I am not prepared to place any significant reliance on what he told the jury or Mr Bruce or the psychiatrists. I am by no means satisfied that his accounts are not influenced by what was suggested to him by fellow inmates. Nor did the Prisoner's demeanour in the witness box inspire another view.
61I also find the Prisoner's evidence concerning weekend visits to Inverell difficult to reconcile at a practical level with visits to the deceased as regularly as the Prisoner asserted. Furthermore, that the Prisoner could defy the deceased's desires throughout the period of months the Prisoner was living in Inverell but, on returning to live at home, feel obliged to visit the deceased each weekend is also unlikely. Nor am I persuaded that threats by the deceased would have had the impact that the Prisoner alleges.
62On the other hand, there remains an appreciable body of evidence that does support the view that there was some abuse. It strikes me as quite unlikely that the Prisoner was making up a tale of abuse when heard by Ms Whittaker. The Prisoner's reactions to the deceased's visits as recounted by his father argues significantly in favour of some impropriety having occurred, although such conduct also argues against the Prisoner having, even unwillingly, visited the deceased with anything like the frequency that the Prisoner alleged, at least unless he was a willing, if ashamed, participant and this has not been suggested.
63The observations of Dr Nunn also argue in favour of abuse having occurred, although it is also to be noted that, as I adverted to in my summing up, both in the witness box and in the dock, the Prisoner spent a deal of time during his trial staring down at the floor in what could be described as a hang dog look. Furthermore, if, as the Crown suggested, the whole story of sexual abuse was a lie, that would account for at least some of the aspects of his demeanour referred to by Dr Nunn.
64I have found resolution of this issue very difficult. However, ultimately I have come to the view that some sort of abuse must have occurred, although I believe it was nothing like as frequent as the Prisoner's evidence would suggest. Nor am I satisfied that it was as serious as the Prisoner alleges. More specifically, especially in light of the limited nature of the Prisoner's remarks detailed by Ms Whittaker and also those in the letter to Tracey Downes, I am not satisfied that there was any penetration.
65On the other hand, I am disposed to accept that sexual abuse was a factor that operated on the Prisoner's mind in his determination to kill Mr Kemlo. Once one concludes that a robbery gone wrong is not the explanation for the killing, there are only two explanations left. One is the Prisoner's impairment of mind but it is impossible to conclude that that is a sufficient explanation on its own in circumstances where there is no suggestion that, except by sexual abuse, the deceased had ever, in any presently significant way, offended the Prisoner. The other explanation is sexual abuse.
66The relative weight each of these matters had is not a matter susceptible of firm determination. All one can say is that, in light of the psychiatrists' evidence and the Prisoner's history the abnormality of mind was substantial and, I am not satisfied that, in the scale of such things, the sexual abuse was. Putting these things aside, the premeditation and deliberateness of the Prisoner's actions in taking the boning knife and gloves and walking almost 3 kilometres argues for adjudging his offence as objectively very serious. So does the fact that at least in part - as the Prisoner told Dr Nielssen - the deceased seems to have been a target of anger apparently inspired by dispute within the household in which the Prisoner lived.
67Of course, there are other factors. One is the Prisoner's youth and in his case I have no doubt, immaturity. The relevant principles and statutory provisions to which regard must be had in this connection are set forth in the judgment of Garling J in R v NR [2011] NSWSC 280. It is unnecessary that I repeat the statutory provisions but the relevant principles, as his Honour noted, include the following:-
(a) Considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence;
(b) In recognition of the capacity for young people to reform and mould their character to conform with society's norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation;
(c) The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for the offender's youth, not just their biological age;
(d) Although accepted to be of less significance than when sentencing adults, considerations of general deterrence and retribution cannot be completely ignored when sentencing young offenders. There remains a significant public interest in deterring anti-social conduct. Of course, the weight to be given to a person's youth diminishes the closer the offender approaches the age of maturity:
(e) The emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders may be moderated when the young person has conducted him or herself in a way an adult might conduct him or herself and has committed a crime of violence or considerable gravity.
68See also R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451.
69Certainly, the Prisoner's offence falls within the description at the end of the passage just quoted. As in every case of manslaughter, an appropriate starting point is to recognise that what is involved is the felonious taking of a human life - see R v Blacklidge (NSWCCA, 12 December 1995, unreported), per Gleeson CJ. And it takes no great maturity to appreciate in the couse of a 3 kilometre walk, that stabbing another human being infringes the rights of others in a way that no civilised society can tolerate and is an extreme reaction to abuse that could have been dealt with in other ways.
70It was also urged on the Prisoner's behalf that as his offence was inspired by sexual abuse, that fact operated in mitigation. Reliance was placed on observations in R v AGR (unreported, NSWCCA, 24 July 1998) and R v CB & IM [2006] NSWSC 261 where Buddin J regarded the principle as also applicable in the case of manslaughter. It was submitted that the motivation for the offence here was directly related to the sexual abuse perpetrated by the deceased, was not a case of revenge for past abuse and not a case where a more severe sentence is warranted in order to address issues of deterrence.
71While I accept that sexual abuse was a motivating factor in the instant offence and should be regarded as operating in mitigation, I am not persuaded that the Prisoner's actions were not inspired by revenge. Furthermore, because of my view as to the Prisoner's credibility, I just do not know whether, as he alleges, he was actually hearing voices telling him to kill the deceased.
72It was further submitted that as the prisoner's capacity to control himself and judge right from wrong was substantially impaired by his mental illness, the objective seriousness of the offence and the weight to be given to the principles of personal and general deterrence were reduced. Reference was made to R v Swan [2006] NSWCCA 47 at [60] - [61] and R v Hemsley [2004] NSWCCA 228 at [33] - [36] where, summarising the effect of mental illness, Sperling J observed that it might be relevant in four ways:-
33 First, where mental illness contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced; there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced: Henry at [254]; Jiminez [1999] NSWCCA 7 at [23]; Tsiaras [1996] 1 VR 398 at 400; Lauritsen (2000) 114 A Crim R 333 at [51]; Israil [2002] NSWCCA 255 at [23]; Pearson [2004] NSWCCA 129 at [43].
34 Secondly, mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration: Pearce (NSW CCA, 1 November 1996, unreported); Engert (1995) 84 A Crim R 67 at 71 per Gleeson CJ; Letteri (NSW CCA, 18 March 1992, unreported); Israil at [22]; Pearson at [42].
35 Thirdly, a custodial sentence may weigh more heavily on a mentally ill person: Tsiaras at 400; Jiminez at [25]; Israil at [26].
36 A fourth, and countervailing, consideration may arise, namely, the level of danger which the offender presents to the community. That may sound in special deterrence; Israil at [24].
73I accept the proposition at the beginning of the immediately preceding paragraph. I also accept all of these propositions of Sperling J. I accept also that, pursuant to the first, the punishment otherwise appropriate should be reduced, and that pursuant to the second, the weight to be given to general deterrence should be moderated. Although there are pluses and minuses, I am not persuaded that a custodial sentence weighs more heavily in this case. For reasons referred to below, I think special deterrence is of importance in this case.
74However, there are other considerations. As the Crown submitted, recognition has already been afforded to the Prisoner's mental illness and his capacity to control himself and judge right from wrong in the jury's decision to convict him of manslaughter rather than murder. Any mitigation of his sentence further on account of these matters runs the risk of double counting. To some degree similar, considerations apply to the first two of the propositions of Sperling J.
75In summary, the Prisoner committed an offence which, even characterised as manslaughter, was objectively serious. Causative factors included the fact that the Prisoner had been sexually abused, the Prisoner's anger resulting from dissension in his parents' household and the Prisoner's abnormality of mind. Of these three, the latter was in my judgment, by far the most significant.
76There are a number of other matters to which regard must be had. Putting aside the issues of sexual abuse and substantial impairment by abnormality of mind, by a combination of pre-trial and admissions made during the trial, the Prisoner made complete pre-trial disclosure of his offence. The issue of substantial impairment was resolved in his favour and so has been the issue of sexual abuse although, in respect of this latter topic, in light of my conclusions, only to a limited degree. Section 22A of the Crimes (Sentencing Procedure) Act 1999 provides that a Court may impose a lesser penalty than it would otherwise impose having regard to the degree to which the administration of justice has been facilitated by the defence albeit the lesser penalty must not be unreasonably disproportionate to the nature and circumstances of the offence. The Prisoner is entitled to some reduction in consequence of the application of this section.
77Section 21A of the Act just mentioned lists a large number of aggravating and mitigating circumstances to which, if they are present, the Court is also required to have regard. It is not necessary that I list the significant number of aggravating circumstances here. They are reflected in what I have said above. I should however refer to some of the mitigating factors mentioned in the section. Although I have concluded that sexual abuse was a factor that played a part in the Prisoner's offending, I do not regard paragraph 3(c), which refers to the offender being "provoked", as having any relevance. The Prisoner has no prior criminal convictions, although in light of his evidence of breaking, entering and stealing, I do not regard him as of previous good character. I accept that the Prisoner has shown remorse. On the issues of the Prisoner's prospects of re-offending and rehabilitation, it is necessary to refer to further evidence.
78Admitted into evidence during the sentencing proceedings was an affidavit showing that the Prisoner was presently engaged in Year 11 studies for the Higher School Certificate
79There was also a report from Dr Joanne Shannon who has been the Prisoner's treating psychiatrist since November 2010. It is not practicable to incorporate in these reasons all of the observations in that very detailed report, but matters which may be noted include the following:-
The Prisoner has always shown a high degree of respect for staff and other patients. While occasionally expressing anger, he has refrained from reacting in an aggressive manner.
He has demonstrated self-discipline in maintaining his studies and motivation to maintain his physical health by exercise and diet. He has interacted well with other patients and is liked and respected by them.
He has expressed remorse for the killing of the deceased, saying that he regretted his actions and that what he did was "inhumane". He denied any longer feeling any anger towards the deceased and denied any thoughts of violence to others.
There is no evidence of either depressed or elevated mood. There is no formal thought disorder. The Prisoner denied any recent perceptual disturbances and demonstrated good insight into his mental health diagnosis and ongoing need for treatment. He was motivated to abstain from alcohol and other drugs.
It is not possible to predict future violent behaviour. While several positive factors, eg, the absence of psychopathy, personality disorder or prior supervision failures, good response to treatment and absence of violent behaviour throughout the period of hospitalisation, exist, the prisoner has also a number of historical risk factors for violence. Considered together, these factors would suggest that there remains an elevated risk of violence compared to other men of his age in the general population.
The prisoner suffers from bipolar disorder, which is a serious mental illness, although he has responded well to treatment and his mood is currently stable.
The prisoner's risks to others and himself would be likely to increase in the context of exacerbation of his bipolar disorder which could occur as a result of severe psychosocial stressors or non-compliance with his management plan. His risk would also increase if he were to relapse into drug and alcohol abuse. That risk would also increase when the prisoner is returned to a custodial setting and on his release from custody, occasions when there will be a reduction in support.
The prisoner will experience exacerbations of his bipolar disorder which may be precipitated by stressful life events or which may occur without obvious triggers. At such times, he will require review of his medications and may require hospitalisation. He has good insight into his mental illness, is aware of the need for long-term psychiatric support and wants to continue his medications. Prior to his release from custody, it will be essential that he is referred to a community mental health service.
He requires long-term trauma counselling to help him deal with the long-term effects of sexual abuse and domestic violence. He would benefit from formal drug and alcohol counselling so that he can identify triggers that may lead him to relapse and learn adaptive coping skills.
80Most of the first three indented paragraphs do indicate that the Prisoner is far more settled than he was prior to his offence and that augurs well for his future. Though undoubtedly the evidence indicates that the Prisoner did indulge in alcohol use at a far younger age than he should have, as I have said, I am unable to come to any concluded view as to the extent of this. However, the evidence does indicate that drugs were a significant problem and despite some positive indications in this regard there is nothing in this report, nor any other evidence in the case, that enables me to have any great confidence that the Prisoner will not return to some drug use. On the other hand, logic would suggest that the experience of his current incarceration should operate as a disincentive from conduct that increases his risk of recidivist behaviour and that that incarceration should be long enough to provide some assurance that it does.
81The Prisoner is also entitled to have taken into account the fact that, apart from the attack on the deceased, he has no history of violence. In the result, while I am not disposed to find that the Prisoner's prospects of rehabilitation and not re-offending are as high as good, I accept that they are at least reasonable and perhaps better than reasonable.
82Against those findings, I turn then to the question of what sentence should be imposed.
83Section 3A of the Crimes (Sentencing Procedure) Act 1999 sets out the purposes for which a Court may impose a sentence on an offender. Having regard to the degree of repetition and, to some degree, generality in which some of the sub-paragraphs of that section are expressed, the statement in Veen v The Queen (No 2) (1987-1988) 164 CLR 465 at 476 is clearer:-
The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform.
84Long-standing authority indicates that deterrence of others is of less weight in the case of an offender whose offending has been committed in consequence of some mental illness. Deterrence of the Prisoner is of significance in this case but when one has regard to the fact that, apart from the offence for which he is to be sentenced, he has no history of violence and the subject offence was largely inspired by his state of mind and some abuse to which he had been subjected, again and subject to the remarks I have previously made on the topic and those in the following paragraph, I do not think that personal deterrence looms large in the sentencing consideration. The one reservation concerns the use of drugs.
85Experience in the Courts makes it clear that illegal drugs are a substantial contributor to irrational and criminal behaviour, particularly in the case of those who have certain congenital mental abnormalities. While it may be reasonably anticipated that the Prisoner will, while incarcerated, have brought home to him such dangers, it is appropriate to fix a sentence likely to deter him from resuming his use of such drugs.
86Veen v The Queen (No 2) makes clear that there are limits to the operation which can be given to incarceration for the purposes of protecting society. In any event, it seems to me that, in the circumstances of this case, the protection of society is largely bound up in the considerations referred to in the immediately preceding paragraph.
87The evidence of the Prisoner's pursuit of education and the report of Dr Shannon make clear that reform, or rehabilitation, of the Prisoner has been and will continue to be addressed at least so long as he remains in a forensic hospital or juvenile justice centre. There are no grounds for thinking that the Prisoner's rehabilitation is likely to be assisted by a sentence longer than I intend to impose.
88The fifth of the considerations referred to by the High Court is retribution. This Court said in R v Gordon (unreported, NSWCCA, 7 February 1994):-
Retribution, or the taking of vengeance for the injury which was done by the offender, is also an important aspect of sentencing: R v Goodridge (1952) 7 WN 42 at 43; R v Cuthbert (1967) 86 WN (Pt 1) 272 at 274; R v Rushby (1977) 1 NSWLR 594 at 598. Not only must the community be satisfied that the offender is given his just desserts, it is important as well that the victim, or those who are left behind, also feel that justice has been done.
89Of course, that latter proposition may not be taken too far. There are those who, in their loss, feel that the law should still demand an eye for an eye or a life for a life but the law has long since abandoned those extremes.
90There is no clear tariff for manslaughter offences, particularly those committed under the influence of an abnormality of mind. It is implicit in the expressions "substantially impaired" and "impairment ... so substantial as to warrant liability for murder being reduced to manslaughter" that there will be variations of degree. Some impairment may be gross, some may only just fall within the description of "substantial" so as to warrant the reduction. The Prisoner's history demonstrates that his abnormality of mind was, by no means, at the bottom of the scale. There are, of course, also the other factors to which I have referred to be taken into account.
91Counsel for the Prisoner submitted that I should make a finding of special circumstances upon a number of grounds. I regard the fact that the Prisoner is serving his first period of incarceration and the desirability of him being subjected to a longer than usual period of supervision in respect of his mental condition and potential to relapse into drug use as ground for the finding sought. I am also satisfied that, within the terms of s 19(1A) of the Children (Criminal Proceedings) Act 1987 there are special circumstances justifying detention of the Prisoner as a juvenile offender. Those special circumstances are that:-
(a) The Prisoner is vulnerable on account of mental illness or disability;
(b) the only available educational, vocational training for therapeutic programmes that are suitable for the Prisoner's needs are those available in detention centres, and
(c) if the prisoner was committed to a correctional centre there would be an unacceptable risk of him suffering harm due to his youth and mental abnormality.
92I base the conclusions set out in sub-paragraphs (a) - (c) upon the evidence in this case and knowledge, gained in this jurisdiction of the situation in correction centres generally.
93Accordingly, in the circumstances of this case, it seems to me appropriate to sentence the Prisoner as follows:-
I sentence you to imprisonment for a non-parole period of 4 years and 6 months commencing on 22 September 2008 together with a further period of 2 years and 6 months commencing on 22 March 2013.
I order that the whole of the said non-parole period be served as a juvenile offender.
I record as the date upon which it appears to the Court that the Prisoner shall become eligible for parole, 22 March 2013.
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Decision last updated: 16 December 2011