R v O'NEIL-SHAW

Osland v R (1998) 197 CLR 316 R v Bolder; R v Zaphir [2008] NSWCCA 222 R v Carroll [2008] NSWCCA 218 CASES CITED: R v Scott [2003] NSWSC 627 R v Sharon Kaye Yeoman [2003] NSWSC 194 Kennedy v R [2008] NSWCCA 21 McKenna v R [2007] NSWCCA 192 R v Elmir; R v Salami [2003] NSWCCA 192

TEXTS CITED: P Mones, "Parricide: Opening a Window Through the Defense of Teens Who Kill" (1996) vol 7 Stanford Law and Policy Review 61 J Rowe, "Escaping a Life of Abuse: Children Who Kill their Batterers and the Proper Role of "Battered Child Syndrome" in their Defense" (2006) Criminal Law Brief Fall 26

PARTIES: Crown David John O'Neil-Shaw (Offender)

COUNSEL: C Allison, solicitor (Crown) S Littlemore QC (Offender)

SOLICITORS: NSW DPP (Crown) Marsdens Law (Offender)

1 HIS HONOUR: This case concerns an attack by a young man on his stepfather. It was a savage attack with a large knife. The attack could well have resulted in the death of the victim and involved multiple stabbing to the neck, face, left arm and hand of the victim.

2 The victim survived the attack but is left with scars, a hoarse voice and permanent damage to his left hand.

3 The accused is a young man of 25 years. He has no significant prior criminal record. He has one offence of driving in the mid-range prescribed concentration of alcohol in his blood, however he has abused alcohol and drugs from the age of 15 years and for many years before the attack he was consumed with resentment towards and hatred of the victim, John McRae his stepfather.

4 The attack occurred at home at 10pm on 30 January 2007 and in the presence of other members of the family of both men. John McRae had been for a run and was sitting with his back to a lounge in the lounge room watching television. The offender sneaked up behind with a large knife in his right hand and attacked the victim from behind. He stabbed him viciously in the neck and face and in the arm. The victim had no chance of repelling the attack. The offender's mother then grabbed him and pulled him away and he ran out of the house somewhere and threw away the large knife.

5 The victim staggered out of the house and on to the lawn where a neighbour cared for him until an ambulance arrived and took him to hospital where he remained for some weeks in an emergency unit. His wife visited him while he was in hospital and took some photos whilst he was on life support. At that stage she was supporting him.

6 When the matter came for trial originally, the offender pleaded not guilty to charges of attempted murder and malicious infliction of grievous bodily harm with intent to cause grievous bodily harm. On the fifth day of the trial after extensive cross examination of the victim, the offender pleaded guilty to the malicious infliction of grievous bodily harm with intent to cause grievous bodily harm. I accepted the plea and discharged the jury. It is now my task to sentence him.

7 During the cross examination of the victim Mr John McRae counsel for the accused Mr Stuart Littlemore QC put to Mr McRae that he was brutal and cruel, that he had assaulted the accused on many occasions, that he had ill treated him, had locked him in the laundry and treated him as unimportant and useless. Mr McRae denied doing any of these things although he did admit that he administered corporal punishment to the offender at times and that officers of the Department of Community Services had spoken to him on a number of occasions after the offender's natural father had made complaints about his conduct.

8 The impression I formed of Mr McRae was that he was an honest and fairly definite witness. Evidence was certainly tendered to establish that there were investigations by the Department of Community Services on a number of occasions into allegations put to them by the natural father of the offender. Those documents did not establish that Mr McRae had engaged in brutal conduct on any occasion.

9 The evidence by Mr McRae certainly established the relationship between him and the offender on the whole was not a good one and he admitted there were a number of occasions when there were unpleasant exchanges between them and he agreed he did not have a good relationship with the offender's natural father, nor with the offender's maternal grandparents.

10 There is evidence also that before Christmas 2006, Mr McRae took his wife and five children on a trip to London. The offender did not accompany them and when the family was in Singapore, he sent his mother an abusive text message telling her that he hated her and his stepfather and he would see them in court. In a subsequent affidavit of 14 April 2008, the offender in paragraph 53 said: "That was definitely not about going to court because I intended to attack John McRae, that was because I had been talking about taking them to court for a long time (with my sister Emily and my brother James) I wanted to sue them for all the abuse that I had suffered from them."

11 In his affidavit he goes on to set out claims that while his parents, brothers and sisters were away, his sister Emily rang him and told him of Mr McRae acting violently towards his mother and his sister Emily. At the time he was taking a lot of drugs, including speed, ecstasy and marijuana and taking drugs was the only happiness in his life.

12 He recounts a conversation with his mother following the return of the family in which he indicated that he needed one further month to stay at home and then he would leave with Emily. It would seem that his mother, by her reply, was pleased that he was going. Following this he continued to drink alcohol and to take illegal drugs.

13 On 24 January 2007 following the break up of a relationship with his girlfriend, he contemplated suicide but did not go through with it. He had a number of verbal disputes with John McRae and claimed that Mr McRae threatened to kill him if he brought a motorbike onto a patio. There was no physical violence between them. He also claimed that on the night of the attack, he drank six pints of beer between 6pm and 9.30pm and three double shots of rum. He also claimed that he had consumed some ecstasy and some speed.

14 When he gave evidence before me on 4 August 2008 he confirmed what he said in his affidavit. The report of Associate Professor Starmer causes me to doubt that the offender drank as much alcohol as he claims because such a large quantity of alcohol drunk in 3 ½ hours, could cause most people to die. I am prepared to accept that he believes he drank this amount of alcohol and I am prepared to accept that he imbibed speed and ecstasy.

15 He is claiming that he did not drink and take drugs on this night for the purpose of attacking his stepfather, indeed his claim is that he did not intend to go home but rather to stay with his girlfriend, but by the time he left the hotel he was feeling angry, he was drunk, but could drive.

16 In his affidavit he claims that when he left the hotel he was feeling angry about everything in his life and particularly about John McRae. He got it into his head that he should go and confront McRae and get him to admit to: "all the abuse and also to tell me what was happening with their marriage after he used me to try and get her back. I wanted answers because all my siblings were suffering and I wanted to sort out the lies. I was thinking I want to sort out all this bullshit that's going on. I had no intention of hurting anyone." (affidavit at paragraph 64)

17 On the night that he stabbed his stepfather he handed himself into the police and did an interview. He did not admit to stabbing his stepfather during this interview but he did speak about his parents telling lies and he claimed that that was what led to what happened. He also claimed the justice system had not paid off and they, (ie his mother and stepfather) had gone overseas for four weeks and that the two of them (ie his mother and his stepfather) earn millions and he was on his own and struggling to pay his rent.

18 His other claims were: (1) He parked his car down the road because that was where he normally parked. He did not do this so that he could take John McRae unawares. (2) As he came in John McRae looked at him with a smirk on his face. (3) He went into the kitchen feeling angry, just wanting to have a verbal fight with his mother and John McRae. (4) He never intended to pick up a knife and did not intend to hurt either of them or anyone else. (5) He wanted to scare McRae rather than hurt him. (6) He hoped by scaring him, McRae would give him the answers as to why he abused all his children all of their lives. He wanted to know why McRae continued to abuse the children after he said that he had changed. He wanted to find this out for the sake of himself and the children. He wanted to know why McRae used him. He wanted McRae to know how it made him feel not going overseas with the family, he wanted McRae to know how unfair it was that all of the children including him, were being dragged into his relationship problems with his wife. (7) He recalled picking up a knife, holding it, and deciding to jump over the couch. He said something like, "So you think I'm a fucking liar?". He was sure McRae said something but does not know what it was and that was all he remembered. (8) He recollected leaving the house by the back door with his arm bleeding, still holding the knife, feeling tired with his hands shaking. He met some friends and later went to the police station. (9) He hated John McRae but did not want to kill him. He was remorseful about the incident and deeply regrets attacking him and hurting him.

19 During the course of his evidence at the trial, Mr McRae denied that he smirked at the offender and said that he was not aware of him at all until the attack happened. Mr McRae strikes me as being a fundamentally honest witness and I accept what he says about this matter. Of course it is quite possible that the offender, with his mind disordered by alcohol and drugs, thought Mr McRae was smirking at him.

20 I also accept that the offender may have no memory of precisely what he did. Professor Starmer explains in his report the process by which a person, very heavily intoxicated, may have a blackout and during that blackout period, may do all sorts of things without having any memory of what he has done. In his evidence before me, the offender gave a version which substantially agrees with his affidavit evidence and what he told police. In my opinion what follows from this is that he was motivated to attack Mr McRae for wrongs he considered Mr McRae had done to him and to his brothers and sisters. He was resentful because he had been excluded from an overseas holiday and he was resentful because his parents had lots of money and he had very little. He was not responding to any acts of violence other than perhaps excessive discipline inflicted on him eight years before and at earlier times. He was angry with his mother as well as with Mr McRae.

21 In my opinion he picked up a knife intending to cause serious wounds to Mr McRae and he achieved his object. He attacked him without warning and when Mr McRae was in a position of helplessness. It is clear that Mr McRae attempted to use his hands to ward off the attack, and he suffered injuries to his left arm and hand as a result of this, but he had no real hope of resisting the attack and he suffered very serious wounds as a consequence.

22 There were no particular acts of violence by the stepfather against him in recent years. Indeed, he was taller than his stepfather and more powerfully built. On the night of the stabbing his stepfather was not engaged in any acts of violence or intimidation directed against Mrs McRae or any of the children. Indeed, when the offender entered the house at about 10pm, his mother was on the telephone and his siblings were all engaged in some sort of quiet activities. His stepfather was sitting with his back to a lounge facing the television set, watching television. He had been on a run, something that he frequently did.

23 There is no doubt that on the night the offender consumed a very large amount of alcohol, both beer and rum, and that he was heavily intoxicated. He also consumed some ecstasy and some amphetamines. It seems likely, to me, that at the time he left the hotel he had no clear intention as to what he was going to do. When he got home, he grabbed a large kitchen knife and without warning, attacked his stepfather. He cannot remember anything of the attack and has expressed deep remorse for what happened. He sent a letter of apology to his stepfather and he said he would never do such a thing again. I am prepared to accept that he is remorseful and that it is unlikely he would ever do such a thing again. The fact that he was intoxicated in no way lessens his responsibility for what occurred. He is an adult and what he did was vicious and deliberate.

24 After the attack, Mr McRae staggered outside the home and called for help. Fortunately for him, a nurse lived nearby and she came quickly enough probably to save his life.

25 Photographs taken by his wife while he was in hospital make it clear he was in a gravely ill situation with life support equipment attached to him. At the time he struck his stepfather, it could not be said the offender was protecting himself or anyone in the household from any violence at the hands of his stepfather.

26 There are a large number of affidavits supporting the offender and his claims that his stepfather treated him and other members of the family cruelly. There are also affidavits from the stepfather and people supporting his claim that he treated all of the family well, took them on holidays, provided for them in every way and was in every sense a good father. The Crown Prosecutor did not cross examine any of those persons who made claims in support of the offender. Mr Littlemore did not cross examine any of those who made claims in support of Mr McRae.

27 The affidavits are reminiscent of affidavits in family law proceedings. They are full of claims and counter claims and I am not able to determine where the truth lies. I am not willing to make any finding that Mr McRae treated any member of his family cruelly, although it is possible that he was at times unfeeling in his attitude and that he was someone who liked to control the lives of the family members.

28 Even if Mr McRae had been cruel or unkind to the offender and other members of the family, and even if this conduct had persisted throughout the offender's childhood and into his adult years, it could provide no justification for what the offender did, nor could it lessen the seriousness of what he did.

29 Sentencing the offender presents many problems. The attack was sudden, unprovoked and very violent and could have resulted in the death of the victim. Mr McRae, the victim, has been left with permanent injuries and disabilities which are likely to be lifelong. He was in hospital for a considerable period and has had a number of operative procedures.

30 He had stab wounds to the neck, face, shoulders and his left hand and arm.

31 It was put to me in submissions that the reasons for this attack lay in the fact that the victim had treated him and his siblings brutally over the years and he was acting in some way to protect them. I raised with Mr Stuart Littlemore QC, his counsel, whether he was raising as a partial defence to the seriousness of the charge that the offender was suffering something akin to battered woman syndrome. Mr Littlemore assented to this proposition and I have looked at literature and case law. I attach the material in an appendix to this judgment.

32 None of this material assists the offender. In some cases, murder charges against battered women or children have been reduced to manslaughter because of years of physical and mental abuse by the victim of the accused person. However, in many cases, this arose because no specific intent to kill can be proved and in other cases the killing was preceded almost immediately by violence at the hands of the deceased or at least a well grounded fear that it would occur.

33 In the present case, the offender chose to go to a hotel and consume a very large quantity of alcohol, including rum and he consumed illegal drugs, including ecstasy. Before he went home, he formed a determination he would deal in some way with his mother as well as his stepfather. He blamed her for letting his stepfather abuse and threaten him and the other children and he was also resentful about her telling him he had to find other accommodation, when he had nothing and his parents were living on a million dollar income in a million dollar home. Fortunately, he did not harm his mother.

34 He struck the victim suddenly and savagely. This caused penetrating wounds to the right anterolateral side of the neck. These wounds travelled through the sternocleidomastoid muscle, lacerating his thyroid gland and blood vessels associated with it. The wounds were within two centimetres of the carotid artery and the jugular vein.

35 The recurrent laryngeal nerve on the right side was divided, leaving him with a right sided paralysed vocal chord. The consequence of this injury continues to this day and has resulted in a permanent hoarseness, making it difficult for him to speak and to sing.

36 There was also a wound to his left mid face and multiple stab wounds to his left forearm with the division of the thumb flexor, ulna wrist extensor, fingers extensors and his little finger extensors. There was a separate stab wound to the thenar eminence. The tendons were repaired and operative treatment undertaken to deal with all his other wounds.

37 It was the opinion of the hand surgeon who fixed his wounds on his left arm and hand the wounds were suggestive of the victim defending himself. This surgeon was of the opinion the depth of the wounds to the arm and hand would suggest a vicious attack by a strong person with a sharp instrument.

38 Mr McRae enjoyed singing and playing a guitar. He cannot pursue these hobbies any longer.

39 The charge to which the offender pleaded guilty is a crime specific intent, which is an intent to "cause grievous bodily harm". The legislature has seen fit to provide for a standard non-parole period of seven years.

40 The crime was violent, vicious and intentional. It caused very serious harm to the victim, who was completely defenceless at the time the offender struck him.

41 Any person committing this crime must expect to get a severe sentence. The need for general deterrence and for retribution, that is, to say imposition of a sentence appropriate to the crime, calls for a sentence of some severity.

42 The offender, his natural father, his mother, his siblings, his grandparents and two ministers of religion, paint a picture of the victim being a controlling, violent and nasty individual. The Crown, for reasons I do not know, has chosen to accept this evidence being given by affidavit, and has not challenged any of it, either by objection to parts of the affidavit or by cross examination of the deponents. The Crown sought to cross examine only the offender.

43 Mr McRae has also provided an affidavit. He is supported in what he says by his brother and other friends and relatives. Mr Littlemore, did not seek by cross examining them, to challenge anything said by Mr McRae or those supporting him.

44 The affidavit material produced on behalf of the offender, untested as it is, is far from convincing and these affidavits did not establish, in my opinion, that Mr McRae was brutal, callous or cruel. I had the advantage of seeing Mr McRae being cross examined for nearly five days. The impression I formed was that he was an honest witness, that he had been very seriously injured and he was hurt by the reaction of his family, all of whom supported the perpetrator rather than him.

45 The affidavit of Mr McRae reveals him to be a very meticulous man who takes notes of everything that he does including all of his activities on holidays. The degree to which he takes notes is perhaps somewhat unusual, and it is consistent with the picture presented of him in his wife's affidavits as a person who is a controller of others.

46 There seems little doubt that in various stages of the marriage, the offender's natural father called the Department of Community Services and made allegations against Mr McRae and against his former wife. It is also clear that he and Mr McRae did not like one another.

47 During the trial, Mr Littlemore QC put the submission that Mr McRae was a monster. I cannot accept that submission. Mr McRae's wife and children have all abandoned him and no doubt this has something to do with his treatment of them in the past, but I am unwilling to conclude that that treatment provided any basis whatsoever for the offender to attack him.

48 The maximum sentence for this offence is 25 years imprisonment and there is a standard non-parole period of seven years. Because he pleaded guilty to this offence on the fifth day of the trial I am entitled to impose a sentence which has a non-parole period less than that of the standard non-parole period if I were to conclude that it was a mid range offence. Nevertheless, the standard non-parole period and the maximum sentence are guideposts that have to be kept in mind when the sentence is imposed. Since he pleaded guilty at trial, he is entitled to a discounted sentence and I fix that discount at ten percent.

49 In this case there are outstanding prospects of rehabilitation. The first matter, though I take into account, in that regard is that he voluntarily surrendered to the police. He also wrote a letter of apology for what he had done, and he has expressed his remorse to the court and to a number of other people, including a probation and parole officer who have reported this.

50 After a period in custody of three months following his arrest, he was released on bail and since that time he has complied with every condition of bail, has worked hard and has ceased taking illegal drugs. He has sought counselling in relation to drug and alcohol matters and has said in evidence before me that he has avoided getting drunk. He is well regarded by a number of people who have provided written references for him and his future rehabilitation is supported by psychological and psychiatric evidence.

51 He has expressed an anxiety not to return to gaol. Apart from anything else he is concerned that pressure might be put upon him in gaol to consume illegal drugs. It is unfortunately a sad fact that despite the best efforts of the Department of Corrective Services, illegal drugs continue to be smuggled into prisons and continue to be trafficked. He found his time in prison very worrying and he is anxious not to return. This anxiety is a very natural one, and I can have some regard to it when I impose sentence. I must nevertheless impose a sentence which properly reflects the seriousness of the offence, which deters him from future offending, which serves as a general deterrent to others who might be minded to offend and which, at the same time, takes into account, his excellent prospects of rehabilitation.

52 There is also evidence that he has suffered serious orthopaedic injuries, which cause him continuing pain, will be permanent and will be likely to cause him problems later in life. He has been working hard as a truck driver and has also started a small business making wooden objects, such as picture frames, shelves and signs. I have seen photographs of some of his handiwork. It seems to be of good quality. Clearly he has done a great deal to rehabilitate himself.

53 While taking into account all the positive things that can be said in his favour, I have to keep at the front of my mind that the attack he mounted on his victim was savage, sudden and on a totally defenceless man. He clearly intended to cause him grievous bodily harm and he achieved his aim. There was no preceding quarrel and he was not in any way responding to any threat made to him or to any other member of the family. He was not defending himself or anyone else and it could not be said that the victim had acted violently towards him or towards any other member of the family in his presence at any time close to the time of this attack.

54 In my opinion, the facts lead me to conclude that for many years the offender had harboured deep resentment towards the victim, that their personal relationship at most times was not good, and there had been episodes of physical chastisement of him by the victim at various stages over the years of his life. None of this could justify or explain the violent attack by the offender and his victim.

55 The attack was a cowardly act since the offender attacked his victim from behind and struck him when he was completely defenceless. The attack was also carried out in the family home in the presence of the offender's mother and other members of the family.

56 The Crown has submitted that I should find this offence is more serious than a midrange offence, while Mr Littlemore has submitted I should not make this finding, but rather I should find the offence was caused by years of brutality at the hands of the victim and that this mitigated the offence to such an extent that I should not impose a sentence of full time custody.

57 I considered both of these submissions carefully. I also looked at the authorities to which I was referred and the articles to which I have also referred on the subject of battered woman and child syndrome.

58 Unfortunately, from time to time, people are stabbed and bashed by a perpetrator and subsequently call evidence that normally they are persons of good character and they would be unlikely to do this type of thing again. Frequently, the court accepts that such people are unlikely to offend again. Often the circumstances of these offences are very sad and cause any judge to feel sorry for all those involved. Often it is submitted that to send the offender to gaol would be very damaging to him and would be unlikely to be of any benefit to the community. Unfortunately, many of the perpetrators of violence are quite young, have previous good character and have committed the offence after a considerable period of drinking alcohol.

59 However, Courts must enforce the law and must give sentences which are aimed at deterring the individual, providing general deterrence, fixing a penalty appropriate to the crime and making due allowance for rehabilitation.

60 Having taken into account the submissions, I am of the opinion I can do nothing but impose a sentence of full time custody. This is a very serious crime and warrants the imposition of an appropriate penalty. I have concluded I should regard the offence as more than a midrange offence because it was sudden, unprovoked, extremely violent, involving repeated blows and caused permanent serious injuries to the victim.

61 I have earlier referred to the fact that the standard non-parole period for this offence, if I conclude it is a midrange offence, is seven years imprisonment and the maximum sentence is 25 years imprisonment. Because the offender pleaded guilty at the trial, I am not obliged to impose a standard non-parole period as the parole period in this case, but I am required to have regard to it and to the maximum sentence as guide posts. I am also required to look at any subjective features of the offender and in particular to such matters as his state of health, the way in which he has conducted himself whilst he has been on bail, his previous good character and the impressive steps he has taken to rehabilitate himself. Because of these factors, I have come to the conclusion that I could treat the offence as warranting less than the standard non-parole period. I am entitled to regard these factors as mitigating the seriousness of the offence so that I can sentence on the basis that it is less than the midrange offence.

62 I have considered the statistics, but do not find them to be of any assistance since there is no pattern of sentencing for offences of this type that would enable me to draw a conclusion as to an appropriate range of sentencing.

63 I have determined the offender is entitled to a ten percent discount for pleading guilty during the trial.

64 I consider that in the circumstances it would be appropriate to impose a sentence containing a non-parole period of four years with a total sentence of eight years. This would give him the opportunity for release at a relatively early time and allow for continuing supervision, which in my opinion should concentrate on anger management and abuse of drugs and alcohol.

65 I also intend to recommend that he be given access to programs concerning anger management and drugs and alcohol abuse while in gaol and consideration be given to classifying him to a young offender's gaol or a minimum security institution as soon as possible. The sentence will also allow for the time he has already spent in custody pending trial, a period of three months and four days.

66 I sentence the offender to a non-parole period of four years imprisonment. There will be a balance of four years. The non-parole period will commence from 5 December 2008 and will conclude on 4 December 2012. The balance of the term will commence on 5 December 2012 and will conclude on 4 December 2016. I recommend he be released on parole on 4 December 2012. He is to be released from all consequences of the sentence on 4 December 2016.

67 I recommend he be classified as soon as possible and considered for a young offenders programme or a minimum security institution. I also recommend that he be given the benefit of programmes concerning anger management and drugs and alcohol.

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