R v Oliver

Supreme Court of NSW|2024-10-25|Before: Ierace J, Mr J, Wilson J, Heath J

Solicitors: Office of the Director of Public Prosecutions (Crown) Aboriginal Legal Service (Offender) File Number(s): 2022/296127

JUDGMENT

HIS HONOUR: On 25 June 2024, Dalton Trent Oliver (the offender) was arraigned on an indictment before Wilson J in the Supreme Court of New South Wales at Newcastle. He entered a plea of not guilty to the murder of Graham Cameron (the deceased) (contrary to s 18(1)(a) of the Crimes Act 1900 (NSW)), and a plea of guilty to an alternative count, of manslaughter (contrary to s 18(1)(b) of the Crimes Act). The Crown accepted the plea of guilty to manslaughter in lieu of the count of murder. The offender also pleaded guilty to a third count, of intentionally damaging property by means of fire in the company of an unknown person ("damage property by fire in company", contrary to s 195(1A)(b) of the Crimes Act). The maximum penalty for the offence of manslaughter is imprisonment for 25 years, and for damage property by fire in company is imprisonment for 11 years. There is no standard non-parole period for either offence.

Circumstances of the offending

The offender is a 25-year-old Indigenous man. At the time of the offences, he was 21 years old. The deceased was aged 54.

The offences

The basis of the Crown's acceptance of the offender's plea of guilty to the manslaughter offence is that he was a participant in a joint criminal enterprise with another person, who was aged 17 at the time (the co-perpetrator), to the effect that the co-perpetrator would assault the deceased and the offender would be present to assist, if necessary. En route to the deceased's residence to carry out the assault, the offender became aware that the co-perpetrator was armed with a knife. Although the offender realised there was now an appreciable risk of serious injury being occasioned to the deceased, he was determined to continue with the assault. The co-perpetrator used the knife to kill the deceased. It was accepted that the offender had not foreseen the possibility that the co-perpetrator would use force to intentionally kill, or inflict grievous bodily harm on the deceased, and therefore the offender's participation in the assault did not come within the doctrine of extended joint criminal enterprise to render him guilty of murder.

The agreed facts

The Crown sentence bundle included a statement of agreed facts (the agreed facts) that set out the agreed factual basis for the sentencing of the offender in some detail. It is to the following effect. On 20 June 2021, the offender was arrested for an unrelated incident. On 21 June 2021, he was granted bail at Newcastle Local Court, with a condition to reside with a person named Chris Davidson at Stockton. However, Mr Davidson was not in a position to have the offender reside with him.
As a result, the offender was effectively homeless, and "couch surfing" in the Stockton area, between 21 June 2021 and 23 July 2021. During that period of approximately four weeks, the offender met the deceased, who resided alone at an apartment in Fullerton Street, Stockton (the deceased's apartment), through mutual acquaintances. The deceased's apartment was in a block of five apartments (the apartment block). They became friendly and the offender stayed at the deceased's apartment for one or two nights during that four-week period.
From 23 to 30 July 2021, the offender stayed with a family at a residence in Stockton (the Stockton residence). One of the residents was the co-perpetrator. On the evening of 25 July 2021, the offender and the co-perpetrator were at the Stockton residence playing X-box. A little after 6:35pm, the offender switched his mobile phone to 'airplane' mode. Between 10:30pm that night and 12:05am on 26 July 2021, the deceased sent a number of messages to the offender. The messages were not delivered until about 3am on 26 July 2021, when the offender switched off 'airplane' mode on his mobile phone. The times at which the messages were sent and their content were as follows: "25 July 2021 [10.30.35pm] Yo [10.32.08pm] I no a bloke that wants some rok, do you have any ? Bro 26 July 2021 [00.01.31am] Oi bro. U going to get back to me? [00.02.47am] That cunt in Mayfield needs a visist,,, ToNight [00.04.12am] Dont 4 get the Long knives,. Max Damage/ [00.05.22am] I need a pipe.."
At 3:11am, the offender replied, "You need a hand". At 3:30am, he switched his mobile phone back to "airplane mode".
A neighbour of the deceased noticed that the light was on inside the deceased's apartment at about 2:30am on the morning of 26 July 2021, but had been turned off by 3:35am, when she left for work. At about 3:38am, the deceased sent a message using the Facebook Messenger app to another friend.
The agreed facts state the following: "The Crown case 11. The Crown case is that ~ a. at about 3.30am on the morning of 26 July, the offender, and another person (probably the young person named above), left [the Stockton residence]. b. Prior to leaving the house, the offender and the other person reached an agreement to assault the deceased. At least one of them was armed with a knife. c. The offender and the other person walked the short distance to the home of the deceased. d. The offender and the other person entered the deceased's unit. e. There was an altercation involving the deceased. During the altercation, the deceased was stabbed in the neck and the back three times with a knife. The deceased died shortly after, as a result of the wounds and associated blood loss. f. The offenders deliberately set a fire in the unit before leaving. Basis upon which the offender should be sentenced for manslaughter and intentionally damage property by fire (in company) 12. The offender has entered his pleas of guilty on the basis that he accepts: a. That he was a participant in a joint criminal enterprise with the young person … to assault the deceased, but it was not within his contemplation that there would be the intentional infliction of grievous bodily harm or death. b. that he went to the deceased's unit in the company of the young person named above. c. that the young person and the offender both consumed marijuana before leaving [the Stockton residence]. d. that there was an agreement between them that the deceased would be assaulted by the young person, and the offender would assist if necessary. The agreement was formed shortly before the young person and the offender left [the Stockton residence]. e. that at some point before arriving at the deceased's residence, the offender: realised the young person was armed with a knife, therefore, realised that the assault would be carried out in circumstances carrying an appreciable risk of serious injury to the deceased, but did not foresee as a possibility that the young person would act with an intention to cause grievous bodily harm or kill. that he was present inside the unit when the altercation with the deceased occurred and the young person stabbed the deceased, and, the young person's level of violence towards the deceased escalated rapidly. The offender and the young person then set fire to the unit, and left, leaving the body of the deceased inside. 13. The Crown accepts it is unable to prove beyond reasonable doubt that the matters accepted by the offender and set out above are not an accurate reflection of the circumstances under which the deceased was killed, and the property damaged by fire. The Crown accepts that the offender is to be sentenced on that basis."

Events following the offences

Having set fire to the deceased's apartment, the offender and the co-perpetrator went to the Hunter River on the western side of Fullerton Street. About 80m from the deceased's apartment, they lit a second fire and placed clothing that had been worn at the scene into it. The offender and the co-perpetrator then returned to the Stockton residence together. At 5:05am, the offender took his phone off "airplane mode" and sent a message to the deceased's phone, saying, "See u tomorrow man I'll give u a hand then only just woke up again I'll see you in the morning". At 5:10am, the offender switched his mobile phone back to "airplane mode", and it stayed as such until 8:26am.
Although the clothing was largely consumed in the fire, police recovered some fragments of partially burnt fabric, the subsequent testing of which showed the presence of blood, the DNA of the deceased and the DNA of the offender.
About 5:00am, a witness was riding his bicycle along the pathway opposite the deceased's apartment when he saw a small fire on the bank of the river and a fire in the apartment block. The witness rang 000 and tried to assist at the apartment block. Firefighters from Stockton arrived at the scene by 5:15am. Firefighting units from Mayfield and Lambton also attended. The firefighters were unable to enter the deceased's apartment, due to the intensity of the fire. The residents from the other units in the block were evacuated.
At around 5:35am, the body of the deceased was found inside his apartment, with his head close to the bottom of the entrance door. The body was severely burnt and partly covered by debris from the door. It was assumed, at that point, that he had died as a result of the fire.
On 29 July 2021, Dr Lorraine du Toit-Prinsloo, a forensic pathologist, examined the body of the deceased. Her findings were summarised as follows in the agreed facts: "a. The deceased had died before the fire took hold in the unit; based on her observations that there was no soot in the airways or oesophagus, the internal organs did not show cherry pink discoloration, and the level of carbon monoxide in his blood was <1%. b. Three 'sharp force injuries' were located, one to the neck and two to the lower back of the deceased. These injuries had caused associated blood loss and were the cause of death. c. In relation to the sharp force injuries, Dr du Toit-Prinsloo said: 'One stab wound was present posterior to the right ear ... through the right jugular vein, right 3rd cervical vertebra, right vertebral artery, thyroid cartilage on the left and right, left carotid artery and left jugular vein. The track of this stab wound was from back to front, right to left and near horizontal.' The fact the stab wound cut through bone suggested 'moderate to severe force'. This wound on its own could have caused death. 'There were two stab wounds to the posterior aspect of the lower back in the right with associated injuries to the liver and right kidney. The tracts of these wounds were from back to front and right to left.'. The liver is a vascular organ and significant blood loss can occur from a wound to the liver. The wound to the liver could alone, or in combination with the wound to the kidney, have caused death. d. Dr du Toit-Prinsloo was unable to say in what order the wounds had been inflicted, or the time involved between the infliction of the wounds and death."
When the remains of the deceased were prepared for examination by Dr du Toit-Prinsloo, the blade of a knife was located with the remains; its handle had apparently been consumed in the fire. Examination of the remaining part of the knife showed the presence of DNA of the deceased at four locations. No other trace evidence was detected.

Statements made by the offender to police

On 30 July 2021, the offender attended Newcastle Police Station and made a statement. He said he had known the deceased for a few weeks and had stayed at his apartment "only a couple of times". The offender said that on the night of the killing, he was staying with a family at the Stockton residence and had played X-box with the co-perpetrator until he fell asleep. When he woke up, he saw some messages from the deceased.
On 1 August 2021, the offender was re-interviewed. He again said that he had been playing X-box and smoking marijuana with the co-perpetrator until falling asleep. He denied going to the deceased's apartment "that night, at any point", and denied being involved in starting a fire at the premises.
On 5 October 2022, the offender was arrested. He declined to be re-interviewed and provided a sample of DNA for comparison purposes. He has been on remand since that date, which is a period of 2 years, 2 months and 1 day. He was committed for trial on 5 July 2023 from Newcastle Local Court. He offered to plead guilty on 13 May 2024, which was more than 14 days before the trial date, thus entitling him to a statutory utilitarian discount of 10 per cent for his plea: s 25D(2)(b)(i) of the Crimes (Sentencing Procedure Act) 1999 (NSW) (the Sentencing Procedure Act). His offer was accepted on 24 June 2024, and he entered pleas of guilty, as noted, on 25 June 2024.
The Crown informed the Court that there is no realistic prospect at this stage of charges being laid against the co-perpetrator in respect of these offences.

The damage occasioned by the fire to the apartment block

The Crown tendered evidence to the effect that the cost of damage to the apartment block was $118,946.10 plus GST. The fire travelled through the roof cavity of the deceased's apartment to a neighbouring apartment, before it was extinguished.

A victim impact statement

A victim impact statement from the deceased's sister was read at the sentence hearing. She spoke movingly of the heartbreak and loss caused by the deceased's death. The Court conveys its sympathy to the deceased's loved ones for their terrible loss.

Prior offences

The offender was convicted at Newcastle Local Court on 13 June 2019 for two offences: wielding a knife in a public place and stalk/intimidate with intent to instil fear. He was fined and given a community correction order (CCO) for 12 months, from 13 June 2019.
At the time of the current offences, the offender was subject to two CCOs, both imposed for the offences of destroying or damaging property. The first was imposed on 27 October 2020, at Raymond Terrace Local Court, for which he received a 12 months CCO, commencing on that date. The order specified random drug testing, supervision by the Community Corrections service, and treatment programs, including "rehabilitation/treatment (drugs). Abstention: 12 months … Type: drugs". I note that entries in the offender's medical records disclose that he reported using illicit substances on seven consultations with his general practitioner during the term of the CCO, contrary to that condition.
The second CCO was imposed on 21 December 2020 for a period of 2 years, commencing on that date. A treatment program was specified: "rehabilitation/treatment mental health."

Offences not finalised at the time or committed subsequently

The matters for which the offender was on bail at the time of these offences were two counts of stalk/intimidate and being armed to commit an indictable offence. The police facts are to the following effect. On 20 June 2021, at the home of his mother, the offender threatened to stab his sister. He lifted his shirt, revealing a knife tucked into the waistband of his pants. His sister called his bluff by saying, "Come on then" and he ran from the house. His sister contacted police, fearing for her and her family's safety. Police arrested the offender that night. The police facts note that the offender was "calm and co-operative", but once he was in the caged police vehicle, "he commenced bashing his head against the cage". He was granted bail, a condition being that he not possess a knife. On 21 December 2021, he was convicted and sentenced to imprisonment for a period of 4 months, commencing on 1 August 2021 and concluding on 30 November 2021.
Five days after the offences before this Court were committed, on 1 August 2021, the offender was arrested and charged with being armed with intent to commit an indictable offence and affray. It was alleged that at around 11:10am that morning, he had a verbal altercation with another male and, while they were crossing a road with others, he lifted his shirt a number of times, showing what appeared to be a machete style knife with a blade approximately 30cm in length. He drew the blade and swung it at the other person, who had to step back to avoid being struck. The offender then ran away. On 21 December 2021, he was convicted and sentenced for each offence to imprisonment for a period of 16 months, commencing on 1 August 2021 and concluding on 30 November 2022, with a non-parole period of 8 months, concluding on 31 March 2022.
The offender has 28 entries on his prison record for the period since these offences, including for matters involving fighting, drugs and alcohol, intimidation and disobeying directions.

Psychological assessment report of Dr Emma Collins

A psychological assessment by a clinical and forensic psychologist, Dr Emma Collins, dated 16 September 2024, was an exhibit tendered by the defence. Dr Collins conducted a semi-structured clinical interview of the offender via audio-visual link (AVL) for two and a half hours over the course of two days, 28 August and 3 September 2024. I note that Dr Collins stated that she had access to the offender's records from various mental and physical health agencies that he had attended from kindergarten onwards.
Dr Collins stated that the offender "endorsed a difficult upbringing", and that he "experienced multiple developmental risks across his childhood". His developmental history was recounted in Dr Collins' report as follows: "6. … [The offender] was predominantly raised by his mother around the Newcastle region. His mother is Aboriginal and his father, who lived in Sydney, was of Australian-British patrilineage. 7. [The offender] reported that he was raised in an unstable home environment. He indicated that his mother abused marijuana and there were other drugs in the home through her partners and associates. He described her partners as abusing alcohol and drugs heavily, and he witnessed domestic violence between his mother and those partners … He has been informed that his mother found his older brother hitting [the offender's] head into the cement when he was a baby. His brother was subsequently placed into the care of their grandmother. [The offender] visited frequently, however, he recounted experiencing sexual abuse by his brother from when he was six years old. He said that when he told his grandmother, she 'bashed' him for telling lies. The abuse stopped when he ceased visiting his brother at age nine. [The offender] noted that his brother has experienced a range of mental health issues, including schizophrenia, and has had a difficult life, adding that he does not hold any resentment towards him for his early conduct. They now maintain a reportedly good relationship. 8. … Whist he said that his mother did the best that she could to raise him and his sister, he acknowledged that she responded to disruptive behaviour with violence. He recounted his mother breaking his ankle when he was six years old with a vacuum pole because he told her to shut up. [He] advised that his mother punched him, threw glass ashtrays and hot coffee on him when he was rude or defiant. He explained that his mother had a violent upbringing and she was placed into care as a child due to paternal abuse. It seems that she did not know how to manage [the offender's] behavioural issues other than to react with violence. He also recounted stealing food at times to ensure he and his sister could eat, highlighting that many of his basic needs were not consistently met … 9. [The offender] described his father's home as equally violent. He said that when he spent periods in his father's care in Sydney, his father would abuse alcohol and regularly 'bash' him with a jug cord and belt … 10. … He estimated staying away from home from as early as eight or nine years old, sometimes for days or weeks at a time. He recounted couch surfing with friends where he could, stating that he would eventually return home. It seems that as he aged, he spent longer periods away from home."
I note that an emergency triage note from Calvary Mater Hospital, dated 20 August 2019, records the offender giving a history of being sexually assaulted by his brother when he was six years old.
Dr Collins noted that the offender engaged in "high risk substance use from a very early age". He reportedly began using nicotine at age six; cannabis at age seven, smoking approximately 1g daily; and crystal methamphetamine (ice) at age nine. He said that he ceased using most drugs at age 11, returning to regular substance use around 16 years old, when he "began to abuse ice heavily" after a devastating relationship breakup. He recounted smoking heroin for a brief period when aged 18 or 19, after which he returned to using ice. Following his stabbing when aged 19 (discussed below at [40]), he began abusing benzodiazepines and similar medications that had been prescribed to him, "typically abusing between 20-30 Xanax (Alprazolam) when able to". He engaged in secondary ice use when he could not obtain benzodiazepines.
As to the impact of the offender's substance use on his behaviour, Dr Collins noted: "22. [The offender] recounted losing consciousness frequently when abusing benzodiazepines, adding that he would wake up with foam around his mouth and often in an unknown place, including in the hospital. Friends would tell him that he had been acting aggressively or engaging in bizarre behaviour, which he had no recollection of. [The offender] endorsed withdrawal related seizures when he could not obtain benzodiazepines, which often resulted in hospitalisation. Records from the Calvary Mater Hospital in Newcastle confirm a history of withdrawal related seizures and multiple admissions due to aggression, whereby he was brought to hospital by Police. … 24. At the time of his arrest in October 2022, [the offender] was engaging in daily cannabis use, benzodiazepine and ice abuse. He indicated that the combination of these substances made him 'severely paranoid'. For example, he advised that he became suspicious of others who looked at him when out in public, adding that he believed that he may have wronged them in some way. [He] also endorsed heightened paranoia around antisocial acquaintances, largely due to being stabbed some years ago as aforementioned. This paranoid thinking has caused him to fear that he would be harmed, and misinterpreting some social cues as acts of aggression towards him."
The offender had "a poor transition into formal schooling". When he was aged 5, a paediatrician stated that: "Dalton presented with longstanding disruptive behaviour with genetic and environmental psychosocial factors and risk of learning disorder, with some developmental difficulty to be further assessed."
While in kindergarten, according to paediatric records, he was diagnosed with Oppositional Defiant Disorder, Attention Deficit Hyperactivity Disorder (ADHD) and a mild speech disorder. Records indicate that he was also diagnosed as having Dyslexia at some point during his childhood. He was on a reduced attendance program at kindergarten (two hours per day) due to his aggressive behaviour. He was prescribed various medications for his ADHD during his childhood, but his engagement with paediatric services, and presumably his medication, appears to have ceased when he was aged 8.
Dr Collins' history of the offender's subsequent schooling was as follows: "13. [The offender] was reportedly transferred to Raymond Terrace Public School in kindergarten due to ongoing behaviour problems. He recounted sexual abuse at that school, by either a teacher or a support person (he could not recall details of the person). He said that his behaviour worsened thereafter, and he became increasingly violent, including directing aggression at teachers. He estimated attending that school between kindergarten and Year 2, when he was expelled after multiple suspensions for aggression. [The offender] attended Medowie Public School thereafter, stating that this was the only school that would accept him at the time. He remained in that school from Years 2 to 6. He was expelled in Year 6 for ongoing aggression, and due to no other options, he was sent to high school early. 14. [The offender] attended Irrawang High School and he spent the remainder of Year 6 in the school's suspension centre. He said that he had to leave the school when he attacked another student who had been racially abusive towards him. He recounted that every time he was targeted by others, he responded with aggression. [The offender] indicated that he began to engage in boxing at the local PCYC from approximately 11 or 12 years old, which he said that he enjoyed. He continued boxing until he was 16 years old, when his drug use escalated. 15. [The offender] spent Years 7 to 9 at Maitland Tutorial Centre. He advised that he enjoyed high school as compared with primary school, stating that he made more friends there. Nonetheless, he was again expelled due to aggression, and he spent the remainder of his schooling at Margaret Jurd School, which is a behavioural support school. [The offender] acknowledged ongoing behaviour problems and he was reportedly truanting school more frequently over time, leading to his eventual disengagement from school in Year 10."
The offender reported completing an industry TAFE course "at some point in the past" and engaging in casual short-term employment from time to time, the longest period being a few months.
Hospital records indicate that the offender attempted suicide in 2014, when he was 14 or 15 years old, by hanging "with a belt after a period of 'chroming' (inhaling toxic fumes)". He told Dr Collins he did not receive ongoing support because he minimised his mental health needs.
The offender's father died from a lethal overdose when the offender was 18 years old. The offender told Dr Collins that "he travelled to see his father immediately following his death", and that he "saw his father's body, which by his description was not in a good condition". It was evident to Dr Collins that this experience "has had a lasting, pervasive impact upon [the offender]", including by way of "heightened anxiety, intrusive recollections and insomnia".
At the age of 19, this trauma symptomatology worsened when he was stabbed multiple times in the arms and legs and suffered traumatic injuries. The incident occurred when the offender was abusing crystal methamphetamine with a friend who became abusive towards a domestic partner. The offender intervened, which caused his friend to impulsively turn on him and stab him multiple times. The offender suffered nerve damage from the assault, was unable to walk for a period, and lost his employment. He reported "a reduced sense of safety … increased anxiety, particularly around others, with hypervigilance, heightened startle response and paranoid thinking about being harmed", all of which, according to Dr Collins, are symptoms "consistent with a diagnosis of post-traumatic stress disorder [PTSD]".
When aged 19, the offender engaged with the Awabakal Medical Service, which is the Aboriginal medical service in the Newcastle area. Awabakal records disclosed "Lifelong fear of enclosed spaces and general worry, frequent hand washing, inability to leave house unless personal image looks ok, needs to be clean - showers frequently in the day" as well as auditory hallucinations, described as a "separate voice telling him people are out to get him". A possible diagnosis of general anxiety with obsessive compulsions and PTSD was recorded.
In 2019 and 2020, the offender was assessed at Calvary Mater Hospital in Newcastle, when brought in by police or ambulance. The records indicate a clinical impression of PTSD, a history of schizophrenia and a suspected personality disorder, such as a borderline personality disorder.
In May 2020, the offender was reviewed by Dr Bipin Ravindran, a psychiatrist with the Newcastle Mental Health service. With respect to Dr Ravindran's assessment, Dr Collins said: "36 … The psychiatrist found that [the offender's] experience of voices 'clinically did not fit the pattern of true auditory hallucinations'. That opinion was maintained when he was reassessed by Dr Ravindran in November 2020. In addition, Dr Ravindran also opined that [the offender] 'indicated that he had OCD, and talked about need to clean and check, but again could not really describe features of OCD'. It was recommended that [the offender] address his escalating substance abuse issues so that he could engage in other interventions to target his mood, impulsivity and reduced frustration tolerance. Dr Ravindran recommended that [the offender] continue with olanzapine 5mg. The report does not indicate when this medication was prescribed, which is typically used to treat symptoms of bipolar disorder and schizophrenia." (report references omitted)
Dr Collins summarised her diagnoses and recommendations as follows: "39. In considering his history and presentation, it is evident that [the offender] has a complex, early onset history of mental health concerns. He has experienced learning difficulties, rigid thinking and obsessional behaviour, as well as incidences of trauma. He also reports ongoing psychotic-like phenomena. In my opinion, these symptoms are best explained by a diagnosis of post-traumatic stress disorder (PTSD) (Code F43.10 in DSM-5-TR4) and an unspecified personality disorder (Code F60.9 in DSM-5-TR). It is difficult to categorise [the offender's] personality structure given the presence of diverse traits; nonetheless, there is evidence of antisocial behaviour, impulsivity and reactivity that is associated with borderline traits. It is also noted that individuals with such a combined presentation of PTSD and personality dysfunction can experience auditory hallucinations and heightened paranoia… Ultimately, [the offender's] clinical history and presentation is complex and enduring, and he will need considerable support if he is to achieve any form of stability in the community. 40. Maturity: I was asked to comment on [the offender's] psychosocial maturity. Maturity refers to a range of behavioural, cognitive and emotional skills that a young person should develop. These include the capacity to regulate one's emotions, demonstrate behavioural self-control, perspective take, problem solve and planning, consider the consequences of one's actions, and identity development. In considering [the offender] against these skills, it is evident that he has experienced significant problems with emotional regulation since childhood. He has also displayed pervasive problems with impulse control. There is no clear evidence across his history to suggest that he has engaged in planning or problem-solving skills. Similarly, this current assessment did not find that [the offender] has specific skills in consequential thinking. It is assessed that his identity development and self-view have been interrupted by significant childhood adversity. He does not demonstrate a clear self-concept or identity (e.g., who am I and what is my role in the world?). 41. It is my opinion that [the offender's] pervasive childhood adverse experiences have significantly interfered with his self-development and psychosocial maturity. This is consistent with research in the area that highlights childhood adversity causes negative emotions and thinking that in turn impede an individual's capacity to form a healthy narrative about themselves. Furthermore, individuals often lack stable, positive interactions with caregivers that helps with identity development. Ultimately, the developmental risks [the offender] has been exposed to have negatively affected his psychosocial functioning and maturity, meaning that his maturity is lower than would be estimated by his age. It is not possible to accurately estimate his level of maturation in years, other than to say that he is not tracking with his peers in terms of psychosocial maturation. … 46. It is my opinion that [the offender] meets the criteria for chronic PTSD and enduring pervasive personality traits. His psychosocial maturity is low as compared with his age, and he continues to struggle with behavioural and emotional control. Ultimately, the pervasive developmental risks he has experienced have resulted in a range of neurodevelopmental and mental health symptomatology, as well as significant substance abuse issues. It is evident that [the offender] will require considerable therapeutic and case management support to maximise his adjustment back into the community. However, his struggles interacting with others, especially in group settings, makes it hard to develop appropriate recommendations for him. Practically, a review of [his] mental health presentation by Justice Health is recommended. He needs to engage in drug rehabilitation as well as mental health treatment and interventions to reduce the risk of future violence. CSNSW will assess [his] eligibility for custodial programming in these areas. In addition, some form of individual mentoring support will be most helpful upon [his] return to the community."
As to the offences themselves, Dr Collins said: "42. The Offence: [The offender] recounted that he had been homeless for some period and had stayed with the victim leading up to the offending. He said that he cannot justify his actions towards the victim and he described feeling 'bad' about his conduct. It was evident that he struggled to articulate the impact of his criminal conduct, but noted that he feels a 'bit broke' regarding his actions. [The offender] expressed a desire to lead a more prosocial lifestyle and avoid further periods in custody, however, he will need intensive support to achieve this as stated above."
The offender's personal circumstances are that he has two children, who are twins, from a past relationship. They were born in 2021 and are cared for by their maternal grandmother. He is not currently in contact with them. He is not presently in a relationship. While on remand, he has been in contact with his mother, sister, brother and a couple of friends. As noted, he was homeless at the time of the offences.

Affidavits of Emma Parker

Two affidavits of Emma Parker, the solicitor with carriage of the offender's matter, were tendered by the defence. The first affidavit, dated 16 October 2024, annexes a certificate of completion for a community service TAFE course that the offender completed at Clarence Correctional Centre; and two references from the offender's neighbours, at the time that he resided with his mother. Both neighbours knew that the offender had pleaded guilty to the offences, and spoke of his polite and respectful behaviour.
At the sentence hearing, I asked counsel for the defence, Ms McLaughlin, what, if any, rehabilitation treatment the offender had received for his mental health issues prior to the offending for which he stands to be sentenced. In response, Ms McLaughlin stated that evidence as to the offender's attendances at the Awabakal Medical Centre would be put before the Court, by agreement with the Crown, following the hearing. The second affidavit of Ms Parker, dated 29 October 2024, was that response. Annexed to it is a copy of the offender's medical records from Awabakal, including summaries of every medical and psychological consultation that the offender had from 7 October 2020 to 26 July 2021. Between 15 October 2020 and 14 December 2020, he had 10 consultations with staff at Awabakal. Between 22 December 2020 and 30 June 2021, he had consultations with his general practitioner at Awabakal on 12 occasions, three of those by phone. He had a session with a psychologist once by phone, on 15 January 2021.

Letters from the offender's mother and sister

Letters of support from the offender's mother and sister were tendered by the defence. Both letters indicated an awareness of the offending and a continuing intention to support the offender. The letter of the offender's mother corroborated the offender's developmental history as he related it to Dr Collins, including his behavioural issues at school, his experiences of violence and sexual abuse during his childhood, and his father's suicide. The letter of the offender's sister corroborated the offender's account of his substance abuse since childhood which was ventilated with Dr Collins.

The objective seriousness of the offences

The offender is to be sentenced for the offences on the agreed facts. They are silent as to aspects of both offences, particularly as to matters that are pertinent to the objective seriousness of the manslaughter offence, such as the offender's motive for agreeing to assault the deceased, and what precisely occurred when he and the co-perpetrator entered the deceased's apartment.
I note at the outset that the matters on which there are no facts before the Court neither aggravate nor mitigate the objective seriousness of the offending behaviour. The offender is to be sentenced on the facts as they are.

The objective seriousness of the offence of manslaughter

There are multiple types of manslaughter; it has been characterised as "almost unique in its protean character as an offence": R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1 at [133]. The offender is to be sentenced on the basis of manslaughter by an unlawful and dangerous act; that is, an act causing death that was contrary to the criminal law and one that a reasonable person in the position of the offender would have realised carried with it an appreciable risk of serious injury to another or others: Lane v R [2013] NSWCCA 317; (2013) 241 A Crim R 321 at [55]-[56]. The offender was party to an agreement to assault the deceased, knowing that it was illegal and that, since the co-perpetrator was armed with a knife, doing so carried with it a real risk of danger to the deceased, but he nevertheless went ahead with the agreement.
The Court of Criminal Appeal has repeatedly affirmed the observation that: "The circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases." [1]
In determining the objective seriousness of the offence, I take into account the fact that the deceased was killed in his home, where he was entitled to feel safe (s 21A(2)(eb) of the Sentencing Procedure Act). He was middle-aged and home alone when confronted by the offender and co-perpetrator, both young males, in the early hours of the morning, so there was a degree of vulnerability which I take into account, in a general sense, as to the objective seriousness of this offence: Du Plessis v R [2024] NSWCCA 164 at [70].
The offender was on conditional liberty; he was subject to conditions of bail for three charges, one of which was that he was armed to commit an indictable offence, having threatened to stab his sister with a knife that he had secreted in his pants (s 21A(2)(j) of the Sentencing Procedure Act). The deceased, who he had only known for a matter of weeks, had provided him with accommodation for one or two nights when the offender was homeless.
There was a degree of planning of the assault, which was agreed before the offender and the co-perpetrator left the Stockton residence, although it was limited in scope and required little organisation (s 21A(2)(n) of the Sentencing Procedure Act).
The offender and co-perpetrator left the Stockton residence at about 3:30am with the intention of walking the short distance (450m) to the deceased's apartment to assault him. The fires at the river and apartment block were discovered at about 5am, thus establishing the overall timeframe within which the killing occurred. The trajectories of the knife wounds suggest that the deceased was stabbed from behind. It is not possible to determine how long it was after the deceased was confronted by the offender and co-perpetrator that he was killed; whether it was a matter of seconds, minutes, or longer, although clearly it was no more than about an hour.
Contrary to a submission by counsel for the defence, I find that the burning of the deceased's body is a matter appropriately taken into account in fixing the objective seriousness of the manslaughter offence, although I note there is no evidence of desecration of the deceased's remains beyond the burning of his body. Counsel relied upon the reasoning of Johnson J in R v Wilkinson (No 5) [2009] NSWSC 432 at [61]-[62], however, there are striking similarities between the facts of this case and those in R v Sumpton (No 4) [2015] NSWSC 684 at [33], which was the subject of appeal: Sumpton v R [2016] NSWCCA 162 at [152].

The objective seriousness of the offence of damage property by fire in company

The offence may be committed "intentionally or recklessly": s 195(1A) of the Crimes Act. I am satisfied that the offender, together with the co-perpetrator, committed the offence intentionally, by means unknown, with the motive of avoiding their criminal responsibility for the killing of the deceased. To be clear, in my view, this motive aggravates the offence. The handle of the knife found with the deceased's remains was destroyed by the fire. It potentially had DNA evidence that would have been invaluable in the investigation.
The offender's disregard for the safety of others is an aggravating factor. It would have been apparent to him that the deceased's apartment was one of many in the block and that, in the early hours of the morning, it was to be expected that the deceased's neighbours, if home, would be asleep and thus vulnerable to injury or death if the fire spread, as in fact it did to the immediately neighbouring apartment, before it was brought under control by firefighters.
The financial loss occasioned by the fire was substantial. It was submitted on behalf of the offender that there was no evidence that he expressly turned his mind to the likely financial impact of the fire. While that is so, I am satisfied beyond reasonable doubt that the offender fundamentally appreciated at the time that lighting the fire with the intention of destroying evidence of their offending, in an apartment that is one of a number in a block in the early hours, prior to 5am, was likely to cause substantial damage before it was discovered and brought under control.
As with the offence of manslaughter, this offence was aggravated by the offender being on conditional liberty at the time.
Clearly the offence was not planned, since on the agreed facts, the offender did not anticipate that the deceased would be killed.

The offender's moral culpability

Counsel for the offender submitted that the principles set out in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [43]-[44] apply in this case, in view of the content of Dr Collins' report. It was submitted that a causal link between the offender's deprived childhood and consequent mental health issues and the offending may be inferred from Dr Collins' findings in [40] and [41] of her report, which are extracted above at [44].
As amplified in oral submissions, counsel for the offender submitted that a causal connection was established by Dr Collins' diagnoses of the offender having a reduced psychosocial maturity for his age and his absence of impulse control, in the factual context of the offending occurring quickly, with a minimum of planning or contemplation and being agreed on the basis that the offender's role would be as a back-up to the co-perpetrator. It was submitted that the causal link is significant, warranting a reduction of his moral culpability to a "meaningful extent".
I am satisfied that the history provided by the offender to Dr Collins, as essentially substantiated by medical, school and other records, establishes on the balance of probabilities that during the offender's childhood he was exposed to gross physical, emotional and sexual abuse, as well as the substance abuse by his carers and role models, that impaired his capacity to mature at an age-appropriate rate and predisposed him to mental impairments, substance abuse and learned responses of physical violence to stressful situations involving others.
In the absence of evidence that would permit the Court to make findings of fact as to the offender's reasoning and motive in agreeing to assault the deceased in the back-up role noted in the agreed facts, and as to precisely what occurred in the deceased's apartment at the time of the offences, I cannot be satisfied that there is a comprehensive causal connection between the offender's childhood of deprivation, for example, as to his shortcomings with impulse control, and the commission of the offences. It is noteworthy that Dr Collins did not attempt to formulate an opinion on that subject in her report, no doubt for the same reason, that she lacked an account from the offender as to precisely what occurred, beyond the agreed facts.
However, I am satisfied that the offender's deficits in consequential thinking and maturity, which are traceable to that background, resonate to some degree with aspects of his offending behaviour that are broadly apparent from the agreed facts, and thus to establish a limited causal connection so as to warrant some attenuation of the offender's moral responsibility. A compromised capacity to mature and to learn from experience, consequent to the exposure in childhood to substance abuse and violence, was a characteristic expressly acknowledged in Bugmy at [41] as relevant to the sentencing exercise, whether relevant generally or causally.
A reduction in moral culpability may also be warranted by an offender's mental health or cognitive impairment diagnosis, if there is a nexus with the offending behaviour: Department of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. However, Dr Collins' diagnoses of chronic PTSD and unspecified personality disorder, in the absence of more detailed accounts of the offending behaviour, give rise to the same difficulty and therefore are not established.

Remorse

There is no evidence of the offender having expressed remorse for either offence, although he did express to Dr Collins, in the passage extracted at [45] above, that, in relation to the deceased, he felt "bad" about his conduct and a "bit broke" about his actions.

Specific and general deterrence

Counsel for the offender submitted that, consistent with the principles in De La Rosa, the offender's mental health impairments, in particular his chronic PTSD, warrant reduced weight being given to specific and general deterrence and greater emphasis to promoting his rehabilitation. Similarly, the offender's Bugmy considerations warranted less emphasis on generic deterrence.
As is made clear in both De La Rosa in the last dot point in [177] and in Bugmy at [44], there may be countervailing considerations of protection of the community that operate on the fixing of the appropriate sentence. These are matters to be taken into account as part of the process of instinctive synthesis, together with the offender's prospects of rehabilitation and how best that may be reflected in the structure of the sentence.

The offender's prospects of rehabilitation

The offender's criminal record at the time he committed these offences was relatively minor, although concerningly, it included a count of wielding a knife in a public place two years earlier, for which he was fined. By the time of these offences, however, he was somewhat in a downwards spiral. The Awabakal Medical Centre records disclose that, consistent with the conditions pursuant to the CCO handed down on 27 October 2020, he was attending for counselling but, as noted, he continued to use prohibited substances. At the time of the offences, he was homeless, facing a serious charge involving threatening his sister with a knife and, by the time of his arrest in October 2022, he was using cannabis, benzodiazepine and methylamphetamine daily.
The offender has real challenges in terms of his rehabilitation. As noted in the passage from Dr Collins' report extracted at [45] above, he has expressed a desire to lead a more prosocial lifestyle and avoid further periods in custody. I accept that he is committed to trying to turn his life around, and that he has taken positive steps in that direction. Since he has been on the buprenorphine program in September 2023, he has not had a prison disciplinary issue involving drugs, although he has seven entries for other matters during that period. He has had periods of employment while in custody. He has completed a TAFE course in community service and received a certificate of attainment in using hygienic practices for food safety in May 2024 and continues to have the support of his mother and sister.
Other aspects of the material are less positive in assessing his prospects of rehabilitation. The offences appear to have had little immediate impact on his offending behaviour involving knives and violence. Five days after these offences, he produced a very large knife from his clothing and swung it at someone in a public place in daylight, while crossing a road in front of bystanders. The seriousness of that offence, of being armed with intent to commit an indictable offence, is indicated by the sentence he received, of 16 months' imprisonment, with a concurrent sentence of the same length for affray, arising from the same incident.
The absence of remorse and this concerning behaviour so soon after these offences makes clear how damaged a person the offender is and how much work there is to be done, in order for him to safely re-enter the community. Dr Collins is of the opinion that the offender needs multiple interventions while in prison and when he is reintroduced into the community, if his substance abuse, mental health issues and behavioural needs are to be treated. Clearly, they are criminogenic factors. I recommend that a copy of Dr Collins' report be provided to Justice Health and that their attention be drawn to paras 26 and 46 of her report.

The offender's onerous experience of custody

It was also submitted that the applicant's experience of PTSD symptomology is such that his time in custody has been, and will continue to be, more onerous than for other offenders who do not have such a condition. I note that the offender's solicitor, in her affidavit dated 16 October 2024, stated that the offender had instructed her that he had been assaulted while in Clarence Correctional Centre and that he had been moved, because it was no longer safe for him to be at that prison.

Special circumstances

Special circumstances are established by, primarily, the fact that the entrenched nature of the offender's criminogenic factors require a long period of supervision to ensure compliance with the treatment and support which he will need when he re-enters the community, including accommodation support. I find that special circumstances are also made out by the fact that the experience of prison is more onerous for the offender because of his diagnosis of chronic PTSD.

Determination

I find that only a sentence of full-time imprisonment is appropriate. I will impose an aggregate sentence that, consistently with the submissions of both parties, will be backdated to commence on the date that the offender entered into custody, which was 5 October 2022.
On each of the offences, although I have not found a significant nexus between the offender's background of childhood deprivation and the offending behaviour, I take it into account as part of the instinctive synthesis of sentencing.
The indicative sentence for the offence of manslaughter, taking into account the objective and subjective factors relevant to that offence and the 10 per cent discount for the plea, is 9 years. The indicative sentence for the offence of damaging property by fire in company, taking into account the objective and subjective factors relevant to that offence and the 10 per cent discount for the plea, is 5 years and 4 months.

Orders

I make the following orders: (1) Mr Oliver is sentenced to an aggregate sentence of imprisonment of 11 years, back-dated to commence on 5 October 2022 and expiring on 4 October 2033, with a non-parole period of 7 years, expiring on 4 October 2029. (2) I recommend that the offender's legal representatives provide Justice Heath a copy of the report of Dr Emma Collins, dated 16 September 2024. (3) In compliance with s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), I direct that the offender's legal representatives advise him of the existence of the Act and its application to this offence.

Endnote

R v Loveridge [2014] NSWCCA 120; (2014) 243 A Crim R 31 at [193]. 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: 09 December 2024

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