R v O'Grady [2000] NSWSC 1255 | Case summary

saying that it was an important criteria for the disorder. She agreed also that another criteria referred to was that during the depersonalisation experience reality testing remains intact. 57 Drs Anderson, Quadrio and Waters also agreed with that proposition. Unfortunately, although it is a statement contained in the Manual, there was not agreement as to what it meant. 58 In Dr Skinner's view, depersonalisation is a subjective experience of feeling unreal or strange. The expression that reality testing is intact means that a person undergoing depersonalisation is aware of his or her actions and that the abnormal perception is not real. She said that in her view, on 14 May, the prisoner's actions were the product of his conscious mind. He had control over his actions and he knew that what he was doing was wrong. Even if he had a transient feeling of depersonalisation, that would not have affected awareness of his reactions or capacity to know that what he was doing was wrong. 59 Dr Skinner gave, as a reason for her conclusion that the prisoner was not acting as an automaton, her understanding of the prisoner's conduct as purposeful and well-coordinated, and that he had a good memory for events, although she conceded, under cross-examination, that people in a state of automatism, including sleep walking, have carried out coordinated activities, including running and frantic attempts to escape some apparent threat, unlocked doors and even operated machinery. She would not accept that the degree of planning and coordination exhibited by the prisoner was consistent with such a state. 60 Dr Skinner was also of the view that the prisoner was not suffering from drug withdrawal at the time of the shooting. Insofar as she relied for this view on an understanding of the prisoner's drug use, the foundation for her opinion was erroneous. She also said that persons undergoing drug withdrawal are very agitated and jumpy, often tremulous and sweating, and feel very uncomfortable and perhaps unable to hold a coherent conversation. They become preoccupied with their own internal experiences and usually have a craving or anxiety manifested by physical agitation. She said that it was not consistent with drug withdrawal if the prisoner, on the night of the party, was acting as a clown, was the centre of attention, was telling jokes, was conversing with lots of people, was talking about picking up girls, and was slowly drinking a 750mls bottle of beer. She said the description "bouncier" did not suggest a drug withdrawal state. 61 Taken to a counsellor's notes of 7 May, Dr Skinner conceded that the prisoner may have been anxious at that time. The description contained in the preceding paragraph of the prisoner's actions on the night of the party is substantially in accordance with evidence I accept. 62 Dr Anderson. Dr Anderson was of the view that the prisoner's actions resulted from four matters: Attention deficit/hyperactivity disorder; substance abuse anxiety disorder; a depersonalisation disorder; and a set of circumstances that triggered the series of events, and that, in consequence, he did not have control of his actions. 63 I have expressed my view as to the first of these matters. So far as the second is concerned, Dr Anderson said that the prisoner's description of his behaviour on the night suggested cannabis substance abuse anxiety disorder and possibly amphetamine substance abuse anxiety disorder. He said that: "A feature of the disorder is evidence of prominent anxiety, panic attacks or, as was indicated by the accused, obsessions or compulsions that predominate the clinical picture." 64 In this connection, Dr Anderson gave a graphic example of a person who became obsessed with the thought of cutting off his penis and did so. 65 In this case Dr Anderson relied, in significant measure, on statements by the prisoner that he had heard loud thoughts of "Kill him, kill him, kill him", saying that these were more consistent with compulsive and obsessional ideas associated with substance-induced anxiety disorder rather than anything associated with flashbacks related to previous LSD use. In Dr Anderson's view it was highly likely that if the prisoner had given up marijuana use two weeks or, a fortiori, one week before the shooting, he would have been experiencing withdrawal effects of increased anxiety, aggression, anger, hostility and paranoid ideation. 66 Dr Anderson did not rule out flashbacks, but suggested that if flashbacks through LSD use were involved it might have been the environmental circumstances that the prisoner experienced at the time of the caravan, with the wind, et cetera, that may have precipitated and triggered the anxiety response that he subsequently developed. He did not believe prior LSD use or flashbacks had anything to do with the prisoner's obsessional thinking. 67 Dr Anderson recounted that the prisoner had said to him that: "I was pissed but I knew exactly what I was doing." 68 The doctor opined that alcohol would have perhaps contributed to the prisoner becoming disinhibited in his actions and this may have impinged upon his lack of impulse control. However, the presence or absence of alcohol was irrelevant to the doctor's opinions in relation to cannabis or amphetamine withdrawal. 69 Dr Anderson said that there was no indication from Matthew's account of the events to suggest psychotic experiences. 70 Dr Anderson recounted that the prisoner had described to him similar experiences of depersonalisation, both pre and post the offence, in which, in a state of being free of substance abuse, he had had similar feelings of being outside of his body. The prisoner had not given such a history to other doctors, and I am not persuaded that what he told Dr Anderson was accurate. 71 Dr Quadrio. Dr Quadrio observed that the prisoner had a background of intense polydrug and alcohol abuse, leading over a period of months or years to recurrent paranoid states, personality changes and organic brain impairment. Without the prior drug abuse, the prisoner would not have shot the deceased. On the basis of her understanding that the prisoner had ceased to use marijuana some two weeks earlier, she said that he would have been feeling the effects of drug withdrawal, such effects involving a craving for the drug. In response to the suggestion that on the night of the shooting the prisoner would have been craving a high, she said that that was not the history he had given her. 72 Dr Quadrio said that the prisoner was suffering from three linked phenomena at the time of the shooting: The impulsivity part of ADD, depersonalisation and a drug flashback. She also agreed that ADD had but a small role in the impulsivity that night. 73 In chronological order, some of the events or factors seen as significant by Dr Quadrio were as follows: There was the conglomerate of circumstances, including the argument with his friend which left the prisoner feeling depressed and paranoid. These feelings, seeing the victim jumping on the caravan, the wind which precipitated events from the past, and some alcohol, triggered a flashback, a drug-related phenomenon that includes perceptual distortions and intensifications. The prisoner also heard voices but it is not clear to me whether Dr Quadrio regarded these as manifestations of a flashback or separate incidents which contributed to it. She described them as flashback phenomena caused by his past use of hallucinogens. The flashback caused the prisoner to be in an extraordinary state of psychological arousal to the extent that he was overloaded. The arousal triggered the depersonalisation, which is like a circuit breaker. 74 Dr Quadrio said that flashbacks do not represent or reflect intoxication on the night of the shooting, but were due to the long term effects of severe drug-taking. They were liable to occur months after drug-taking. Once in a state of depersonalisation, the prisoner was not able to control his actions, although aware of them in a distorted way. Expanding on the significance of alcohol, Dr Quadrio said that the prisoner was drunk and that the alcohol would have added an element of disinhibition but would not have been a critical factor. 75 Dr Waters. In Dr Waters' view there were three critical, predisposing factors which preceded the shooting: (1) The prisoner had become desensitised to death and killing. (2) The prisoner had developed a heightened sense of injustice from observing his father's conduct to his mother which, because the prisoner was close to his father, he had had to suppress and deal with in his imagination by shifting the focus of his indignation to imagined and real situations in which his father was not to blame. These included or consisted of scenarios wherein he appeared in an heroic role, rescuing or seeking vengeance on the family's behalf. (3) The prisoner had a lifelong history of significant inattention and impulsiveness, more so than average. 76 There were then a series of events which occurred on 14 May 1999: (i) The consumption of alcohol had probably left the prisoner mildly intoxicated and disinhibited. (ii) The fight with his friend had probably left the prisoner feeling a little disgruntled. (iii) The prisoner seems to have had a brief but negative interaction with the victim. Seeing the victim jump on the caravan seems to have aroused in the prisoner a feeling of righteous indignation. (iv) The prisoner then evolved one of his scenarios, in which he was going to exact punishment for a perceived wrong by killing the victim. (v) The prisoner's inhibitions about acting out the killing fantasy were lifted by a combination of his impulsiveness, desensitisation and mild intoxication. (vi) However, his knowledge of right and wrong was not entirely overwhelmed, as he could not go through with the killing until he had detached his mind from his actions. (vii) Thus it was he entered into a clinical state of depersonalisation or psychological detachment. 77 This state of depersonalisation was evidenced by: (a) The prisoner's early reports of detachment and observing the events, while knowing where they were leading, because a disembodied voice was commanding him to "Kill him" or "Do it". (b) Hyperacusis, a condition wherein sounds, including the wind, seem to be amplified. (c) The sense of snapping out of it when he saw himself in the mirror. 78 Factors which led Dr Waters to think the prisoner was in a depersonalised state were Constable Demmery's statement, ERISP answers 65-66, 72-3, 171, 297, 365-370, 378, 453 (although earlier Dr Waters had pointed to only answers 65 to 66, and 72 to 73), and the appearance of perplexity in the interview. 79 Other matters about which Dr Waters expressed opinions included the following: He said that alcohol was a significant factor, although he could not say whether it was an essential one. The prisoner's account was highly consistent with depersonalisation and not consistent with a drug flashback. He also said that drug flashbacks can be quite prolonged. Based on the history Dr Waters was given, and the description of the prisoner's conduct at the party, Dr Waters opined that the prisoner was not suffering from drug withdrawal at the time of the shooting. The counsellor's notes of 7 May, arising from an interview with the prisoner, could indicate withdrawal or simple anxiety. The prisoner did suffer from substance abuse disorder, which may have been in remission. 80 Dr Waters was of the view that the prisoner knew, at the time of firing the rifle, that it was wrong. In another part of his evidence, Dr Waters said that the prisoner's mind knew what he was doing. At least subconsciously he knew his actions were wrong, but he could not control these apparently purposeful actions. Although his evidence was not entirely clear, Dr Waters seemed also of the view that the depersonalised state he diagnosed significantly impaired the capacity of the prisoner as someone carrying out his actions to understand them, although he could understand them in his role as spectator. 81 Dr Waters' opinion as to the extent of depersonalisation the prisoner experienced should be recorded. At one stage he described it as a moderate, rather than of mild or severe, degree. Later he retreated from this somewhat and said that only a tiny percentage of people, probably less than one per cent, would experience depersonalisation to the extent the prisoner did. 82 On another topic, Dr Waters said the prisoner's desensitisation to violence is not transitory. 83 What conclusions should be drawn from this evidence with all its conflicts? In that regard I acknowledge the principle that before I can find any facts adverse to the prisoner beyond those necessarily implicit in the jury's verdict, I must be persuaded of them beyond reasonable doubt (Isaacs 90 A Crim R 587). It is sufficient to find matters in mitigation on the balance of probabilities. 84 In the first place, I am not satisfied that the prisoner committed his offence for a "high" or a thrill. Indeed, I am satisfied that the probabilities are strongly against this. In this regard I rely on the other options for a "high" which he had, that he had not previously manifested his liking for thrills by intruding on others, and the absence of any statements by him suggesting such a motivation. 85 Secondly, once that hypothesis is rejected, there is no complete, normal explanation for the prisoner's conduct, of which it is possible to be satisfied beyond reasonable doubt. There is nothing in his past conduct to indicate any tendency to practice violence, and there were elements of the bizarre in what he did. 86 Thirdly, his lie to induce the deceased into the bush, his asking Miss E to wait, his obtaining of the rifle and the fitting of the silencer, his choice of location, his attempts to silence the deceased, his discarding of the weapon before returning to Miss E, and his concern while with her about detection, were, given his intent, in themselves purposeful, rational, and indicate some awareness of what he was about to do or had done. I would add, particularly as the transcript does not record it, that the track off the Charles Darwin Walk, which the two boys took, is, though short, so steep and uneven that it also argues in favour of awareness, purpose, and against automatism. I find it impossible to think that it could be negotiated by a sleep walker. The jury and I had a view of this track during the trial. 87 However, there seems to have been an almost unbelievable lack of thought given to the inevitability of detection arising from the fact that he was seen to go off with the deceased and then used his father's rifle. I have no doubt that the prisoner's prior interest in guns made him aware of the science of ballistics. Nor would there seem to have been any rational reflection, prior to entering into the bush and perhaps later, on the consequences to himself of what he was about to do. 88 I put aside any consideration of his conduct vis-a-vis Miss E, primarily because it is difficult, if not impossible, to determine the motivation behind much of it. The sexual act may have been largely opportunistic. It may have reflected a high state of arousal of which some of the doctors spoke. 89 Miss E was allowed to go, although she could give evidence against the prisoner. On the other hand, some of the prisoner's conduct, twisting the shirt into a rope and going behind her, on one view was very threatening. However, it was not suggested by the Crown that the prisoner had thoughts of killing Miss E, and the significance of those actions was not the subject of debate. 90 Fourthly, I am satisfied, beyond reasonable doubt, of some matters. These are: (a) Impulsiveness, to an uncommon degree, was an element of the prisoner's make up. (b) The fact that over an extended period prior to May 1999 the prisoner experienced or imagined scenarios wherein he killed. (c) The prisoner had used drugs in the way, and to the extent, I have described above. (d) The drugs he used are known to lead from time to time to irrational thoughts and actions, including compulsive, obsessional thoughts, paranoia and hallucinations. (e) The fact the prisoner was desensitised to violence. (f) The prisoner was intoxicated, to a degree, by alcohol, and disinhibition is a common consequence of the ingestion of alcohol. (g) The prisoner experienced some degree of depersonalisation during at least some of the time he was in the bush. 91 Furthermore, the evidence satisfies me, beyond reasonable doubt, that, with the exception of the last, all of the above factors contributed to the shooting. 92 So far as depersonalisation is concerned, I am of the view that the prisoner's actions were too purposeful for depersonalisation, if it has the attributes that the doctors other than Dr Skinner attributed to it, to be a factor which contributed to the shooting, as distinct from one which flowed from the decision to do it or the implementation of that decision. 93 As Dr Skinner pointed out, depersonalisation can arise from stress, and the decision and the offence were both likely to have occasioned stress. I also do not see how the opinion of those other doctors as to the consequences of depersonalisation can be reconciled with some of the statements from the textbooks which I have quoted, which statements were not challenged as wrong. On the topic of the consequences of depersonalisation, I prefer the evidence of Dr Skinner and take that view beyond reasonable doubt. 94 It may be also that the opinions I have rejected cannot be reconciled with the jury's verdict, but, given my views just expressed, that is a matter I need not pursue. 95 Similar considerations lead me to the view that it was not at the time when the prisoner saw his face in the mirror that he first realised what he had done. I accept that it may be that he then realised it to a greater degree or with more clarity than earlier. The prisoner's actions after the shooting and prior to his separating from Miss E in my view argue convincingly against the suggestion that it was only when he saw himself in the mirror that he first realised what he had done. 96 There may well have been other factors also operating. Not one of the doctors in the case suggested that the matters to which I have referred were enough, on their own, to explain the prisoner's conduct. However, the conflict between the doctors as to what the remaining factor was or factors were does not make easy the task of determining what they were. 97 Dr Waters' opinion that the sight of the deceased aroused in the prisoner a feeling of righteous indignation, and that he then evolved one of his scenarios in which he was going to exact punishment for a perceived wrong by killing the victim, seems to me to be, to a degree, speculative and unsupported by other evidence. I acknowledge that the deceased's actions and the prisoner's response may be consistent with indignation and a desire to punish, but I am not conscious of any direct evidence from the prisoner which would justify positive inferences or conclusions to that effect. Furthermore, the scenarios in the prisoner's mind, about which there was evidence of his doing violence, seem to have been confined largely, if not exclusively, to ones where there was an assault to his family. 98 Dr Quadrio's view that a drug flashback was the explanation for much of what occurred is opposed by Dr Skinner, although she did not rule it out as part of the night's events, and Dr Waters. Dr Anderson did not rule it out totally, but he did not regard it as an explanation for the obsessional thinking which, as I understand it, was regarded by him as an important component of what occurred. Furthermore, Dr Quadrio's evidence that a person experiencing a flashback knows or perhaps generally knows that it is a re-experience does not readily explain the prisoner's actions on the night of 14 May. Her further evidence that, in terms of his, the prisoner's, mental processes, it was implicit in what she was saying that everything the prisoner did that night, from the time of deciding to shoot the deceased to the mirror, accords, more or less, to something he had experienced previously, derived limited support from the prisoner as to his prior experiences. 99 Dr Anderson's view that the voices or thoughts of "Kill him" of which the prisoner spoke were indicative of substance abuse anxiety disorder derived no support from others, although, in part, their views seem to me to reflect some misunderstanding of the prisoner's use of drugs at the time and in the weeks before. 100 Also, there was limited evidence of anxiety on the part of the prisoner, which was not readily explicable on other grounds. I am not persuaded, particularly to the standard of beyond reasonable doubt, of the correctness of the diagnosis of any one of the doctors. On the other hand, while they do not agree as to the category of psychiatric or psychological condition which the prisoner experienced on the night of 14 May, there is common ground between Dr Anderson and Dr Quadrio in attributing a deal of his experiences and behaviour to the consequences of his past drug-taking. That accords with my own, non medical view that the mind-affecting drugs were one of the causes of the prisoner's irrational behaviour on that night. Again, I hold that view beyond reasonable doubt. 101 In one sense, I think the prisoner did have an abnormality of mind on the night of his offence. The circumstances of it, in many respects, defy logical explanation. I think it probable that there was some impairment of his capacity to control himself, but I would not go so far as to describe it as substantial. There were too many apparently rational and purposeful actions. I think it probable, also, that his actions were influenced by the scenarios to which I have referred. 102 The evidence does not enable me to make any findings additional to those contained in the preceding paragraphs as to contributing factors. 103 Lest it be thought that I have not given sufficient recognition to them, let me refer, perhaps again, to a number of features which I must bear in mind in sentencing. There was no prior history of actual violence and the offence is, thus, out of character. It has not been suggested that the prisoner has any other significant record. Some minor stealing was mentioned during the trial but, in the circumstances, it is of no consequence. The prisoner is of above average intelligence. He does not qualify for the discount commonly given by the utilitarian value of a plea of guilty. He was sixteen years and nine months at the time of the offence. Within hours of committing it, he showed remorse for, and responsibility in admitting, what he had done. That remorse continues. 104 There was also evidence bearing on the prisoner's prospects of rehabilitation. A report under s 25 of the Children (Criminal Proceedings) Act recorded that the prisoner's behaviour while in custody has been, although not perfect, good. He is pursuing studies and the coordinator of the studies says that he has the capacity to complete his higher school certificate by the end of 2002. Not surprisingly, there has been some disruption of his studies. 105 That report also observed that the prisoner reported that his aggressive and violence fantasies no longer troubled him, but that he "seemed to accept little responsibility for the antecedents of his offence (and) seemed overly optimistic about the re-emergence of these difficulties in the future." 106 It was said that he both needed and was amenable to counselling. 107 Dr Quadrio was called in the proceedings on sentence. She expressed the view that the prisoner had done very well in terms of rehabilitation at the detention centre where he has been. He is, in her view," enormously different now from the way he was at the time of the crime." 108 I should refer also to evidence given during the trial. It was given there as incidental to the issue of whether the prisoner had a mental illness. Summarised, it was to the effect that the risks of the prisoner re-offending depended very much on whether he returned to some of the habits to which I have referred above, particularly drugs. 109 It is appropriate also that I record that a number of the medical witnesses opined that the prisoner was not a psychopath. There was no contrary evidence. 110 I turn then to the principles to which I must have regard. An appropriate starting point is the statement of the High Court in Veen v Regina (No 2) (1987-1988) 164 CLR 465 at 476-7: "...Sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. 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. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions. And so a mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter. These effects may balance out, but consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality." 111 In that case (at 478) there was also reaffirmation of the principle that: "The maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed." 112 While there is a temptation to say that because of its final impact on the victim each case of murder must fall into a worst category, it is a long time ago now since our society, as manifested by the Governments of the day, has regarded a life sentence, either in the form of capital punishment, or in actual imprisonment for life, as the norm for cases of murder. I must apply the law as I understand it to be. Matters such as premeditation, motive, number of victims, character and past record of an offender, and degree of cruelty to a victim must be taken into account. I do not wish, for one moment, to minimise the horror which Christopher Brown, the victim in this case, must have experienced, but, regrettably, this Court has seen far worse instances. 113 The youth of the prisoner brings in some other principles. In GDP (1991) 53 A Crim R 112 at 116, Matthews J, with the concurrence of the other members of the Court, said: "Rehabilitation must be the primary aim in relation to an offender as young as this." 114 The applicant in that case was fourteen and three-quarters at the time of his offences - involvement in property destruction to the extent of over $1 million - and nearly seventeen at the time of the judgment of the Court of Criminal Appeal. 115 Earlier, again with the concurrence of the other judges, Matthews J had said: "The approach to be adopted in the sentencing of young offenders has been discussed in a number of cases. In Wilcox (unreported, Supreme Court, NSW, 15 August 1979), Yeldham J remarked during the course of sentencing of a young offender that 'in the case of a youthful offender" considerations of punishment and general deterrence of others may properly be largely discarded in favour of individualised treatment of the offender, directed to his rehabilitation'. His Honour relied upon Smith [1964] Crim LR 70, where it was said: 'In the case of a young offender there can rarely be any conflict between his interest and the public's. The public has no greater interest than that he should become a good citizen.'" 116 In C S & T (unreported, Court of Criminal Appeal, NSW, Gleeson CJ, Allen and Studdert JJ, 12 October 1989), Gleeson CJ accepted a submission that: "In sentencing young people...the consideration of general deterrence is not as important as it would be in the case of sentencing an adult and considerations of rehabilitation should always be regarded as very important indeed." 117 Subsequent decisions of this Court, however, suggest that considerations of general deterrence should not be ignored completely when sentencing young offenders. In Regina v XYJ (unreported, Court of Criminal Appeal, 15 June 1992), a differently constituted Bench also quoted, with approval, the passage of Regina v Smith, adding the next two sentences: "The difficult task of the Court is to determine what treatment gives the best chance of realising that object. That realisation is the first and by far the most important consideration." 118 Their Honours went to on to observe that the statement of principle contained in Regina v Smith had been applied in many cases, citing, by way of example, five where that had occurred. They went on to say: "This is not to say that considerations of general deterrence should be ignored completely when sentencing young offenders. They should not. But they do not have the same importance as they do in the sentencing of adults (see R v GDP )..." 119 See also R v Pham (unreported, CCA, 17 July 1991). 120 Youth brings in some other factors beside considerations of rehabilitation and general deterrence. The immaturity incidental to it tends to make an offender's conduct less serious on a moral scale than that of someone of mature years. Thus, by way of example - and I regard the proposition just stated as applying more widely - although drug addiction is not generally regarded as a matter of mitigation, this may not be so where it occurs at a young age (see Regina v Henry (1999) 46 NSWLR 398 at [273]). 121 On the other hand, the seriousness of the crime of murder would seem to have placed some limit on the application of this approach favouring young offenders. Although Judicial Commission statistics have their limitations, those for "Murder - all offenders", covering 173 offenders in the period January 1993 to December 1999, show that the median full and minimum or fixed terms of imprisonment imposed were eighteen years and fourteen years respectively. Those for "Murder - individual, one count, no priors, plea guilty, less than 21 years" - a series of relatively favourable features - show corresponding figures of eighteen and twelve years. It must be acknowledged that these last statistics cover about fifteen offenders. Four had minimum terms of ten years, four of twelve years, none of fourteen years, and three had minimum terms of sixteen years. 122 I return to the facts of this case. Given his youth and the closeness of his symptoms to those of attention deficit disorder, some allowance must be made in the prisoner's favour for his impulsivity. It is to be inferred, from the presence of his father's marijuana on the piano, that the use of that drug was regarded, at least by his father, as acceptable. Given his age, recognition of this also operates in the prisoner's favour. The fact that his mother sought the prisoner's cessation of use in the circumstances she did says nothing about her general attitude to it. 123 On the other hand, the fact that the prisoner seems to have sought to conceal from his parents his use of other drugs argues in favour of the view that he believed they disapproved. There is no reason to think he was unaware of general community attitudes both for and against the use of all of the drugs ingested, and that at least LSD, marijuana and amphetamines were illegal. I see no reason to regard his use of these in the same way as I see some explanation for his use of marijuana. 124 In light of the psychiatric evidence, and the fact that the scenarios which the prisoner experienced involving his family and his rescuing them with violence seem to have been experienced independently of his drug-taking and snuff video watching, some allowance must also be made for these. He can hardly be blamed for what the medical evidence indicated was a normal, psychological reaction occurring at a young age. 125 Despite his age, I see no reason to regard his use of alcohol on the night as a mitigating factor. He clearly had a significant quantity and past experience must have taught him that he was liable to do stupid things under its influence. 126 Nor do I regard his desensitisation to violence as a mitigating factor. Although only sixteen, he was old enough to recognise the sanctity of life and to reject the thrills or other experiences he derived from seeing, time after time, the death of others. 127 Despite the psychiatric evidence, I do not see, in his father's conduct in the course of family disharmony or his interest in guns or in hunting an excuse or explanation - or, more precisely, one which operates in the prisoner's favour here - for pursuing those videos. Nor, except insofar as it led to the scenarios, do I see that conduct of his father to which I have just referred as itself a mitigating factor. Common experience indicates that the prisoner must have had, in addition to his father, many other sources of instruction and example. 128 I was also asked to make an order under s 19 of the Children (Criminal Proceedings) Act that the prisoner serve the whole of his sentence in a detention centre. That section provides: "If a court sentences a person to whom this Division applies to a term of imprisonment in respect of an indictable offence, the court may, in respect of a person who is under the age of 21 years, make an order directing that the whole or any part of that term be served in a detention centre." 129 The Division containing s 19 applies to the prisoner and, thus, I clearly have the power to make the order sought (Regina v SMP [1999] NSW CCA 318). Evidence was called in support of, and in opposition to, this application. 130 On the prisoner's behalf, evidence was given by Dr Quadrio. In this connection it is appropriate to point out that she is the Director of Mental Services in the Department of Corrective Services. In that capacity she has had cause to assess and examine cases of young persons making the transition from a juvenile centre to an adult prison, and becomes acquainted with numerous reports dealing with sexual assaults on prisoners. She said that the rehabilitation services in adult prisons were not as adequate as those in detention centres, where the prisoner has been, and, given the environment of them, she could not see an adult prison as having a positive effect on the prisoner. In this connection Dr Quadrio drew a distinction between the prisoner, whom she said was not a hardened criminal and who had excellent rehabilitation potential and other young persons who are hardened offenders by the time they go into an adult prison. 131 Dr Quadrio was also asked about the incidence of violence in prisons. She said that she could not speak for all prisons but a recent survey at the Silverwater Remand Centre, where there are 900 odd beds, disclosed that there were 1,000 major assaults there per annum, of which approximately half were of a sexual nature. She went on to indicate that other prisons had considerably higher levels of violence. 132 I cannot but observe that Dr Quadrio's evidence, to which I have just referred, is a damming indictment of the prison system. Persons must be sent to gaol. It is appalling that they must be sent into that sort of conduct in a State which calls itself civilised. 133 It was submitted that the prospect of the prisoner, young and, if I might say so, obviously young in appearance, being raped in an adult prison was very high and this also argued for detention at Juvenile Justice institutions rather than adult gaols. I am entitled to take such matters into account (see Regina v C (1994) 75 A Crim R 309 and Regina v Burchell (1987) 34 A Crim R 148 at 151). 134 In opposition to the application, there was also called a Mr Peter Muir, who was the Director of Operations of the Department of Juvenile Justice. He gave evidence that the Department did not support the idea of young persons over the age of twenty-one remaining within the Department's system. The Department is established primarily for the care of younger people and the presence of persons over twenty-one years, among a group of age fifteen and upwards, creates complications. He said that the Department had found that persons staying within the detention centre programmes for very long cease to benefit and tend to stagnate. He mentioned also a problem with leave and accessing facilities off-site, but I am not persuaded that that is of significance in this case. 135 Mr Muir did acknowledge that within the 298 detainees under control of the Department, five were over the age of twenty-one years. One of those persons was approximately twenty-three, another approximately twenty-four, but Mr Muir did not know the ages of the others. 136 There are also some observations in the report prepared under s 25 of the Children (Criminal Proceedings) Act, which bear on the instant topic. It was said that "the juvenile system does not offer Matthew any form of psychological rehabilitation that could not be undertaken in the adult system"

R v O'Grady

At a glance

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Decision date

Before

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Judgment (26 paragraphs)

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Cases Cited (2)