R v Peters

• 28 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Sentence 1 HIS HONOUR: Damien Anthony Peters appears for sentence in relation to 2 counts of murder, following pleas of guilty, entered by him on 27 November 2002. The first such offence relates to the murder of Tereaupii (Andre) Akai, between about 18 February 2001 and 1 March 2001. The second offence relates to the murder of Bevan James Frost, on or about 9 September 2001. Some six offences of obtaining money by deception (s 178BA(1)) Crimes Act 1900 (NSW) are to be taken into account on a Form 1, in relation to the murder of Akai.

FACTS 2 The two offences came to light following a conversation between Jillian Nash and police, on 29 August 2001, when she related her concerns as to the whereabouts of Akai, who had not been seen for some time. In particular, she indicated that the defendant had mentioned to her that Akai was dead, that he had killed him six months ago, and that he had cut up his body and disposed of it down the toilet, or in bins. He also mentioned cutting the hands of the deceased, knocking out his teeth, and putting peroxide and chemicals on his hair in order to burn it, so as to prevent his identification. He mentioned additionally, that he had been collecting Akai's pension using his bank card, but that it had been stolen. She said that he had asked her to go to the bank with a letter, with his name on it, saying that she had been asked to collect the rest of the money because the card had been lost and cancelled. 3 Police and Ms Nash went to the residential unit where she lived in Redfern. They were there provided with a Centrelink card in Akai's name. A bag containing clothing and medication in the name of the defendant, as well as a St George Bank statement in the name of Akai, were also collected. 4 A search warrant was obtained in relation to the premises at Flat B9/15 Northcott Flats, where Akai and the defendant had lived. When the premises were entered, they were found to have been ransacked. Blood stains and smears were observed in various locations, and an external window frame was seen to have been shattered. Other residents at the flats indicated that Akai had not been seen for some months. 5 Inquiries were made in relation to the St George Bank account in Akai's name, which revealed that there had been six withdrawals, via ATMs between 7 June 2001 and 16 August 2001, totalling $1650. In some instances the video camera attached to the ATM's showed that the withdrawals had been made by the defendant. 6 On 30 August 2001, the defendant was spoken to by police at Langton Clinic. Later he participated in an electronically recorded interview, in the course of which he admitted to having been the person responsible for the withdrawals. In the course of this interview, he claimed to have been given Akai's bank card as a "gentlemen's agreement", under which, if he stayed and looked after his flat, and looked after their dog, he could withdraw moneys from the account, and keep any balance, after paying the rent and electricity. The money paid into the account, against which the withdrawals were made, he acknowledged had come from Akai's disability pension. 7 He claimed that this agreement had been made about six months earlier, when Akai had said that he was going away for a while, as he needed a break from the Northcott flats. He said that he had not heard from him since, and, as a result, he was "tearing [his] hair out". He added that he did not know where he was. 8 In the course of this interview, he mentioned that Bevan Frost was his "best friend". He also said that he had turned Akai's flat upside down because he had been upset, and, in the course of doing it, he had cut his hand when breaking a pane of glass. The blood which was there, he suggested, was his own blood. 9 Inquiries revealed that the defendant had been in a homosexual relationship with Akai for some 3 years or so. Evidence given by the defendant showed that they had met at the Langton Clinic Half Way House, and had lived together for some time, with periodic interruptions when Akai had asked the defendant to leave. He blamed Akai for having infected him with HIV, Akai also having the virus, which had developed into AIDS by the time of his death. The defendant indicated that Akai had not warned him of his HIV status, and in fact had not admitted it until he was seriously ill. He claimed to have nursed him for a year, without getting any thanks for it. 10 The defendant was charged with the offences of obtaining money by deception, which later came to be included on the Form 1, and he was released on self-bail. 11 On 5 September 2001, a listening device was installed and activated in Ms Nash's apartment. A number of conversations between the defendant and Ms Nash were thereafter intercepted and monitored, until the device was deactivated on 7 September 2001. 12 In the course of one such intercepted conversation, on 5 September 2001, the defendant, while obviously suspicious as to the source of information which had led to him being interviewed by police, expressed his appreciation to Ms Nash for " sticking up" for him, indicating that he had told police that he did not know where Akai was, but that he had obtained the money under a gentleman's agreement. At one point, he clearly admitted to having killed Akai. Otherwise the tenor of the conversation was consistent with him having done so, and of being concerned that the police would arrest and charge him. 13 On 11 September 2001, police attended the residential unit 3 block A, level 1, Northcott Flats, where the deceased Frost had been living, and where, it was understood, the defendant might be found. Upon being admitted to the unit by the defendant, police observed that it too had been ransacked. The defendant was informed that he was under arrest for the murder of Akai. In the course of inspecting the premises, police discovered smudges of blood on the carpet and walls of the bedroom, as well as a pattern of blood on the mattress of a bed forming the outline of the upper torso of a body. In the bathroom they found a decapitated body in the bath. 14 The defendant informed the police that the body was that of Frost, and that he had killed him 2 days earlier with a knife, after a fight. He indicated that the knife had been placed under the carpet near the front doorway. A blood stained carving knife, 320 mm in length was found in this location. 15 The defendant was placed under arrest for the murders of both Akai and Frost and taken to Surry Hills Police Station, where he later participated in an electronically recorded interview. 16 In the course of this interview he admitted to having killed Akai, eight months or so earlier, by stabbing him in the neck. He claimed that Akai had manipulated him into sleeping with him, had been responsible for infecting him with HIV and, had experienced many mood swings, in the course of which he had been violent and abusive, and had put him down. At the time of the killing, he claimed, Akai had been screaming at him and calling him "stupid", to the point where, being "revved up", he had had enough, and had been unable to help himself. At that point he said that he had gone into the kitchen to fetch a knife. On his return he stabbed Akai twice in the neck while he was sitting on the lounge. He claimed to have been on methadone and coming off crystalline methamphetamine, ("Ice") at the time of the killing. 17 He said that he had placed the body on the floor of the bathroom, where he had disembowelled it, and cut it up, over the succeeding days, with a hacksaw. He had then disposed of the various parts, which were concealed in plastic or leather bags, and then placed into garbage bins. 18 He disclosed that he had removed the hands of the deceased, and had made cuts across them, in order to prevent fingerprint identification, and for the same reason he had removed the teeth from the body, which he had then flushed down the toilet, along with the liver. He had snapped the pelvis and leg bones in order to get them into the bag. The disembowelment of the body, he said, took about 6 hours. 19 He said that apart from methadone, he had not been on drugs at the time, and that he had been aware of what he had been doing. He explained that he had not informed police because he had been scared, and had not wanted to return to gaol. 20 The interview then progressed to the finding of the body of Bevan Frost. The defendant again agreed that it was he who had killed this man, saying that it had occurred about 2 days before the police had attended at the flat. 21 He explained that Frost had manipulated him as much as Akai, and that he had been unable to handle it. He claimed that he had been on drugs and had stabbed him in the back, chin, and then in the neck, two nights earlier, while he was lying on his bed. He acknowledged having had a sexual relationship with Frost, but said that he "got sick of being used for sex". He described his mood as "frustrated, angry", and said that he did not think Frost had been awake when he stabbed him. He claimed to have taken about 40 of the deceased's tablets, several hours before he killed him, and said that "the mixture of them both sent me a bit crazy". 22 He acknowledged, in this interview, that two minutes or so before killing Frost, he had placed the knife under the pillow of the bed. When asked why he had killed Frost, rather than leave him, he said: " … cause I had a dog I've got nowhere else to go and I've got to think about the dog" In his evidence he raised a question as to whether he had in fact placed the knife under the pillow or had gone out to the kitchen to fetch it.

23 When asked why he had killed Akai, he had in fact offered a similar reason, indicating that the dog was the only thing which he loved. Akai, he claimed, used to ill-treat the dog, and he suggested that this was one of the reasons for killing him. 24 After killing Frost he said that he had dragged the body to the bathroom, where he had disembowelled it, and flushed the intestines and other organs down the toilet. He had then cut off the head and placed it, together with segments of the lungs, into a plastic bag, which was found by police in that room. He had intended to cut up the remainder of the body in similar fashion to the earlier murder, and had in fact begun to cut the soft tissue from one leg. However, he had felt sick, and had taken a large number of drugs, with the consequence that he had been unable to complete the task. He claimed also to have taken a number of tablets before this killing, and said that what had happened had occurred "in a haze, a daze, head full of pills". 25 In relation to each murder he asserted, in effect, that the decision to stab the victim had been a spur of the moment event. However, he conceded, in each case, that his intention had been to kill the victim. 26 The report of the post mortem examination, prepared by Dr Lawrence, revealed, apart from the decapitation and evisceration of Frost, there had been four and possibly five perimortem stab wounds to the neck and posterior upper right back. It revealed that the penis and scrotum had been removed, in addition to the head and internal organs. A large number of other post mortem wounds were reported to the head, chest, legs and arms. 27 The circumstances leading to the killing of Akai and Frost were further explained in a statement prepared by the defendant, which was tendered and adopted by him when he gave evidence. 28 Together, an explanation was given in relation to the way in which he and Akai had met when they were both detoxifying at Langton Half Way House, and how it was that he had come to live in Akai's flat, in late 1997. He explained the ways in which he had felt manipulated by Akai, in which Akia had frustrated his attempts to leave the flat; and disclosed that, at times, Akai had been physically violent towards him, occasioning on one such occasion, a head wound that required sutures. 29 He said that when they first had sex together, Akai had assured him that he had been free of any form of sexual disease. Some little time later he found that he had gonorrhoea, and was also HIV positive. He recounted his adverse reaction to this news, which involved feelings of anger and betrayal and which led to, an increase in his drug use, and to the loss of his job. He formed the belief that, as a result, he would have to stay with Akai, as he had nowhere else to go, and had a feeling of dependence upon him. 30 He said that as a result of Akai's jealousy and obsessiveness, he became submissive to him. As Akai's condition became worse, he said that he became more aggressive, both towards himself and to others. It was only while Akai had been admitted to hospital that he had finally admitted to having been responsible for the defendant's HIV infection. Later, however, he tended to suggest that the infection had occurred in the opposite way. He said that Akai's aggression and moods continued, even though he had assumed responsibility for nursing him, and had, on one occasion, revived him when he had lost consciousness. Akai's aggression, he said, was also turned towards their dog, in that he took to cruelly beating the animal when he was in a bad mood. 31 During the days preceding the killing of Akai, he explained that he had used crystalline methamphetamine, and had been coming down badly off it. He had been using other drugs, and had not slept for several days. He had felt extremely depressed and an argument, or as he preferred to refer to it, a discussion, developed in relation to a sum of $500, which had been saved for veterinary treatment of the dog and for living expenses, but which Akai had lost at the Casino. Rather than apologising, he said, Akai had become abusive and critical towards him, as a result of which he had snapped and killed him. His feelings at the time he described as being those of depression, of being suicidal, worthless, stupid and of blaming Akai for giving him HIV and for ruining his life. 32 Following the killing, he said, he had decided to take more drugs and to kill himself. He sold the stereo and television and purchased drugs with the proceeds. He claimed not to have slept for 9 days or so, and to have sat around in a daze. During this period, he acknowledged that he had cut up and disposed of Akai's body, and had also cleaned the carpets and the unit, using bleach. 33 He said that he had loved Akai, and that when he had finally come to his senses, he had been shocked by what he had done. He said that he had just "existed" over the next six months, not knowing what to do, or where to go. He had remained at Akai's flat, using drugs, and in a state of depression, for which he obtained from his doctors, a prescription for Prozac. Prior to the police first speaking to him, he claimed to have had several nervous collapses, in the course of which he had "trashed" the flat. 34 He next dealt with the events immediately preceding the murder of Frost. After having been interviewed by police, in relation to the ATM withdrawals, he had found that the locks to the flat had been changed. 35 As a result, he had been forced to move in with Frost, a man in his late fifties, who he had first met about 3 years earlier, and who he knew to be gay. He had then lived there until his arrest. He said that Frost had manipulated him in the same way as Akai had. He claimed that he had been sexually aggressive, very rough, had violated him with his fist, and had made him use drugs such as Dilantin (an anti-convulsant), which had made him less aware of what was going on, and had left him physically weak. He indicated that he had increased his drug usage in order to handle the sex, even though the drugs had made him feel increasingly depressed and agitated. At the time of his killing he claimed to have been affected by 'Ice', from which he was coming down. He said that he was also taking Zanax and Dilantin. 36 He felt extremely drugged, in deep depression, sick of everything and not reasoning. It was in this state, and following the rough sexual demands upon him, he said, that he had stabbed Frost while he was lying on his stomach, expecting a massage. He claimed to have been in a daze, as if in a dream when he did this, and added that he had been in fear of the sexual manipulation happening over and over again. Over the succeeding days, while he partially disembowelled the body, he had taken a large quantity of drugs and had felt very unwell. 37 Although Frost was an older and frailer man, he claimed also to be fearful of him as he had a switchblade and a hammer, which he claimed to be prepared to use. 38 In his statement, in his evidence, and in his discussions with the psychiatrists who have examined him, he expressed remorse for what he had done. The remorse may be accepted as genuine. However it is, to a degree, qualified by the considerable lack of insight into his criminality, which was evidenced by his claim to need "the forgiveness" of Akai and of his family, in order "to be able to move on". This appears to be indicative of his tendency to blame everyone but himself for his wrongdoing, and for the failures in his life, and to suggest that he is a somewhat self centred individual, who has little in the way of feelings for others. 39 Statements were provided from residents of the Northcott flats, confirming that there had been a number of incidents of violence between the defendant and Akai, and that the defendant had appeared to have had a great deal of anger about him in the period before Frost's death. One of these residents said that the defendant had complained to him of Frost's sexual demands.

ASSESSMENT OF OBJECTIVE CRIMINALITY 40 It is next convenient to note the relevance of the pharmacological and psychiatric evidence which was tendered, so far as that reflects upon the defendant's objective criminality. 41 A report was provided from St Vincents Hospital, in relation to a neuropsychological assessment which had been carried out on Akai, in June 2000, following concerns as to his AIDS condition, and as to the possible development of an AIDS dementia complex (ADC). In substance, the test results were consistent with the reported changes in cognitive function, and with mild ADC. The history taken from the defendant, for the purpose of that assessment, was also consistent with his subsequent claims that Akai had been subject to mood swings, and had been "more easily triggered to depressed mood and anger than he had in the past."

Pharmacology 42 Dr Judith Perl, a forensic pharmacologist, provided a report in which she stated that, had the defendant consumed 60 Dilantin tablets, or some similar substance, as he claimed she would have expected "very serious life threatening symptoms to have occurred", as this would have been well in excess of any prescribed dosage. 43 A report was provided by Associate Professor Starmer, a pharmacologist with established expertise in relation to the effects of alcohol and drugs. He had available, for the purposes of his report, various medical records including the pharmaceutical benefits history of the defendant. The history which he took assumed that the defendant had acquired a significant record of substance abuse, had been on a methadone program, and had received testosterone (steroid) therapy. 44 Apart from the use of cannabis, amphetamines, cocaine, heroin and methadone, during the period between April to September 2001, the medical records show that the defendant had been prescribed, at various times, something of a cocktail of medications, including Valium, Ducene, Prozac and testosterone. In addition to these drugs, as recorded in his medical files, the pharmaceutical benefits reports showed that he had also been prescribed Paroxetine, Oxazepam, and dicloxacillin, apparently for his symptoms of feeling down, and of being unable to carry out his daily activities. 45 Professor Starmer was asked to assume that the defendant had been heavily intoxicated with drugs at the time of both murders, and at the time of his interview with police. I interrupt this account, to observe that the video of the interviews would tend to support the view that he was to some extent affected by his history of substance abuse at this time, particularly when comparing his physical appearance then, with his current appearance. However he appears to have comprehended, and responded, appropriately to the questions asked of him. 46 At the time of the first killing, Professor Starmer understood him to have taken an intravenous injection of 0.5 gms of Ice (crystalline methamphetamine) over the two preceding days, to have smoked marihuana over the three preceding days, to have been on a daily methadone dosage of 100 mgs, and to have been receiving a weekly injection of 250 mgs of Sustanon (a testosterone). 47 At the time of the second killing, Professor Starmer understood the defendant to have been taking, on a daily basis, 3 to 6 Zanax Triscour tablets, 3 to 4 Valium tablets, 1 to 2 Dilantin tablets, Mogadon, and 90 mgs of Methadone. Additionally he understood him to have been receiving intramuscular Sustanon every fortnight, Nandralone and Durabolin weekly, and to have used an intravenous injection of 250 mgs of crystalline methamphetamine (ice), two days earlier. Pharmaceutical benefits reports showed that, additionally, he had received, in the three weeks preceding this killing, diazepam, oxazepam and alprazolam. 48 After this killing and preceding the police interview, he understood the defendant to have consumed about 30 tablets of Zanax, "handfuls" of Valium and approximately 30 Dilantin tablets. 49 It was by reference to these assumptions that Professor Starmer was asked to express an opinion as to the likely effects of these substances upon the defendant. In this regard he said that many of the drugs taken had "the potential to elicit profound psychological, physical and emotional effects", adding, that "such potential is usually increased when drugs are taken in combination and fatigue can further exacerbate the adverse effects." Among the individual effects which he recorded, in relation to these various drugs, were those of anxiety, paranoid ideation, irritability, emotional lability and violence, and impaired mental functioning. 50 In relation to the drugs which the defendant had consumed after the second killing and before the interview, he said that, despite the tolerance that the defendant would have developed, their consumption "would be expected to affect his ability to respond appropriately to being questioned by police".

Psychiatric assessment 51 Kim Begley, a clinical psychologist employed at the Albion Street Centre for the treatment of HIV and Hepatitis, provided a statement outlining his dealings with the defendant between 27 January 1998 and 7 September 2001. He had the impression that the defendant had suffered an adjustment reaction with anxiety and depression, consequent upon being infected with HIV/AIDS. In early 1998 the defendant reported to him that he was using cannabis, Rohypnol, Serapax, and Zanax, to help him cope, and was receiving drug and alcohol counselling at the Langton clinic. He had expressed suicidal thoughts at one time, but had resisted referral to a psychiatrist. 52 Subsequently that year he reported to Mr Begley that he was having relationship problems, and said that he was using cocaine, and later heroin. After a break, while he was in prison, Mr Begley next saw him at the end of 1998, and on several occasions during 1999. They discussed his relationship problems and stresses, and the defendant indicated, later, that he had successfully ceased the use of methadone. 53 During early 2001, he disclosed, at various times, being back on methadone, and using cannabis and speed. In April he claimed to be depressed as a result of his use of speed, and indicated that his partner had moved out, and allowed him to stay in the unit. On 15 May he expressed anger towards people who were asking him about the whereabouts of that partner, and indicated that he was using Zoloft, Valium, testosterone, and methadone. In June he added that he was using heroin again. 54 Mr Begley tried to get him to understand the relationship between his use of drugs and mood swings. In July 2001 he expressed anger due to the things which had happened to him, and in September he said that he felt that he was being used for sex, and indicated that he intended to move out. 55 It was Mr Begley's belief that the defendant had a variety of characteristics of a borderline personality disorder, that at times of stress his personality difficulties were exacerbated, and that his use of drugs made it difficult for him to deal with his anger. 56 Reports were provided from three psychiatrists, Drs Ellard, Nielssen and Skinner. 57 Dr Ellard excluded any form of psychotic disorder, but suggested that the explanation for the defendant's actions lay in his dysfunctional childhood, and particularly in his relationship with a high achieving father, who had dealt with him harshly when he failed to live up to his expectations. He also saw, in his schooling difficulties, a sign of him suffering from an attention deficit disorder - with which his response to the use of amphetamines (in making him clear minded and quiet) was consistent. 58 The relationship with his father, Dr Ellard saw, as reproduced in the later disastrous relationships which the defendant had with other men. He described the situation as one in which people, like the defendant, "endlessly recreate those experiences and [are] unable to escape from them"; adding "the combination of his dysfunctional life, his misuse of chemicals and his lifestyle trapped him in situations from which there was no logical or reasonable escape, from his point of view". The diagnosis which he offered was one of "borderline personality disorder." 59 Dr Nielssen received a history from the defendant in which he repeated the way in which he had been manipulated for sex by various men, or groups of men, with whom he had been involved in relationships, including Akai and Frost. He similarly noted the history of a fearful relationship with his father, and his intimidation by the gay scene, in which he had felt exploited by the older men, who he had hoped would look after him. 60 Dr Nielssen diagnosed a "personality disorder characterised by chronically depressed mood, poor self image, ambivalent sexual identity, volatile relationships and self destructive and self defeating behaviour." He also suggested that he had developed an adjustment disorder following the HIV infection. In addition to becoming more depressed, he though that the infection added to conflict in his relationship with Akai. 61 He thought him to have been affected by a combination of prescription and illicit drugs at the time of the first killing, that offence having occurred during a period of severe depression, which had followed upon the use of Ice. 62 The combination of an adjustment disorder with depressed mood, emerging on the background of a personality disorder, he thought had been likely to "have substantially affected his perception of the events, and his capacity for self control, and to have qualified as such for consideration under s 23A of the Crimes Act". 63 The second offence he understood to have occurred at a time when the defendant was intoxicated with a combination of drugs which are known to reduce inhibition, and during a period of severe depression, following a further period of amphetamine abuse. However, at that stage, he thought him to be "mainly affected by benzodiazepine medication which he took voluntarily at greater than the recommended doses". His mental state, he accordingly concluded, would not have qualified under s 23A of the Act 64 Dr Skinner noted a similar history relating to the defendant's childhood and history of drug abuse. She found no signs suggestive of any psychiatric disorder, cognitive defect, or of an immature personality structure. She was unable to find any evidence that his capacity to understand events, to judge that his actions were wrong, or to control himself, were substantially impaired. The depression which he was feeling at the time of killing Akai, she thought, "did not arise from an underlying condition, but from the transitory effect of the drug 'Ice' amphetamine". She did not agree with Dr Neilssen's diagnosis of an adjustment disorder having existed at the time of this killing, since she thought that his reaction to the discovery of his HIV status could not be considered as having been excessive to such a major life event. 65 She accepted that he had a diagnosis of "substance abuse (multiple drugs) - in remission" and that he may have an underlying personality disorder, although that was not evident at the time of her examination. She said that if he can maintain abstinence from drugs and avoid abusive relationships, then his potential for reoffending would be greatly reduced. 66 It was in these circumstances, and in the light of the experts' reports and the history of prolonged substance abuse, that pleas of guilty to murder, rather than manslaughter were offered. Those pleas, it may be accepted, were entirely appropriate. The significant contributing effect of the heavy abuse by the defendant of both illicit and prescribed drugs, while helping to explain the defendant's actions, did not excuse them, nor could it have given rise, on the face of the medical reports, to the qualified "defence," of substantial impairment of responsibility. 67 The abusive and manipulative conduct of each of the deceased, including the aggravating circumstance that Akai had caused the defendant to become HIV positive, without having warned him, and without having acknowledged that to be so, and even, at one stage, having suggested that it was the defendant who had been responsible for his own condition, could not have amounted to that degree of provocation at law, which would have reduced murder to manslaughter. 68 In this regard, the timing of the discovery of the defendant's infection, and the continuation of the relationship for a considerable time thereafter, speak strongly against provocation being established by reference to that fact alone. The misuse by Akai of the $500, while undoubtedly vexing, similarly could not have qualified as provocation. Nor could Frost's sexual manipulation and practices have qualified, given the defendant's acceptance of them and his election to remain living in his flat. In each case provocation would have to be considered in the context of an ordinary person, unaffected by drugs, albeit by reference to the combination of aggravating circumstances which can eventually culminate in an offender reaching breaking point. 69 While provocation in law was not open to the degree that may have reduced murder to manslaughter, that is not to say that these factors are not of considerable relevance for an assessment of the defendant's objective criminality, in relation to each killing. They clearly are of significant relevance, particularly in the light of his background, and the personality disorder found to have been present by both Drs Ellard and Nielssen, and conceded by Dr Skinner to possibly have been present. 70 Upon any view of the objective circumstances of the two killings, they are exceedingly serious, and they were aggravated by the very disturbing subsequent dismemberment or partial dismemberment of each body. The deliberate and cold blooded way in which the defendant went about this activity, his attempts to clean Akai's flat, his attempts to prevent identification of Akai through fingerprint or dental records, his use of Akai's credit card to access his pension, and the charade which he subsequently adopted as the reason for his disappearance, all speak of a man cerebrating relatively clearly, and acting very callously, despite his continuing abuse of drugs. They also speak of a man lacking, at that time, in much, if anything, in the way of remorse or insight into what he had done. 71 In his favour, however, I accept that the defendant was provoked to a degree by each victim, in the case of Akai by his pattern of physical and mental abuse, and in the case of Frost by his sexual manipulation or abuse. I also accept that he was heavily affected by drugs at the time of the killings, that he did not mutilate or torture either deceased before his death, and that neither killing was premeditated or planned in any way. 72 I also accept that, in each case, the defendant found himself to be the submissive partner in somewhat disastrous relationships of the kind into which he had repeatedly entered, and from which he had found great difficulty escaping. That was in part due to his background and to his personality profile. The relationships were made all the more difficult by his contracting HIV, which had a very significant impact on his life, as well as a not unexpected anger for, and resentment of, Akai, and by the fact that had nowhere to go, and no family to turn to for help. I also accept that at the time of the killings he was significantly depressed. To some degree that was attributable to the fact of his HIV condition but more relevantly and significantly, it was the result of his use of crystalline methamphetamine, the ingestion of which illegal substance was a matter of choice on his part. 73 In combination, I am satisfied that these circumstances and the matters referred to by the psychiatrists and psychologists reduce his objective criminality to a degree, and that his situation is somewhat akin to the position of those offenders who fall into the category of the "battered woman syndrome". 74 The extent to which offenders who fall into that category can call it in aid, either by way of a qualified defence of provocation or diminished responsibility (now substantial impairment, in New South Wales) or self defence, has met with a mixed reception in decisions such as R v McEwan Supreme Court of Western Australia, 8 March 1996, and Oswald v The Queen (1998) 197 CLR 316. 75 In Oswald, Kirby J (at 370 to 378), in particular, cautioned that the battered woman syndrome ("BWS"), which he saw as better expressed in gender neutral terms, should not be regarded as a separate defence available to people living in an abusive relationship of dependency. As his Honour said (at 375/376), when noting the need for care in the reception of evidence concerning BWS: " It is not a universally accepted and empirically established scientific phenomenon. Least of all does the mere raising of it, in evidence or argument, cast a protective cloak over an accused, charged with homicide, who alleges subjection to a long-term battering or other abusive relationship. No civilised society removes its protection to human life simply because of the existence of a history of long-term physical or psychological abuse. If it were so, it would expose to unsanctioned homicide a large number of persons who, in the nature of things, would not be able to give their version of the facts. The law expects a greater measure of self-control in unwanted situations where human life is at stake. It reserves cases of provocation and self-defence to truly exceptional circumstances. Whilst these circumstances may be affected by contemporary conditions and attitudes, there is no real legal carte blanche, including for people in abusive relationships, to engage in premeditated homicide. Nor in my view should there be. To the extent that evidence about BWS is tendered in a trial to sustain that conclusion, judges must firmly bring the jury back to the limited use to which such evidence may be put. This is, and is only, as it bears upon the legal issues in the trial such as self-defence and provocation." 76 I do not read this paragraph, however, as suggesting that the relationship of learned helplessness, which characterises such relationships, is irrelevant to a consideration of the objective criminality of an offender. 77 The facts in McEwan have some general similarity with those in the present case, so far as that offender had also been in a long term homosexual relationship with the victim, in which he had adopted a submissive and dependent position. However, the facts there were much more closely aligned with the classic position of a battered partner, in that there had been a long history of brutal sexual assaults and domination, which led to the Crown accepting a plea of guilty to manslaughter, by reason of provocation, in full satisfaction of the indictment. 78 The present case falls some way short of this, as is indicated by the difference in plea, and also by the fact that the second murder occurred within a very short period after the relevant relationship began. Additionally, the contributing effect of the defendant's own personal shortcomings and his long-term abuse of drugs, cannot be ignored. 79 The fact that the provocation of the victims, or the mental state of the defendant, do not reach the level required to reduce murder to manslaughter, does not mean that they cannot be taken into account as mitigating the objective severity of the conduct which, by verdict, or by plea, amounts to murder: R v Bell [1985] 2 NSWLR 466 and R v Twala NSWCCA 4 November 1994. That they had, in combination, the consequence of reducing the defendant's objective criminality, in this case I accept. 80 Despite the exceedingly serious nature of each offence, and the fact that the defendant has killed twice within the space of 8 months, I am accordingly satisfied that the factors mentioned do take the case outside s 61 of the Crimes (Sentencing Procedure) Act 1999, as that section was held applicable in R v Harris [2000] NSWCCA 469, and do not require mandatory life sentences. Although the case does have some superficial similarity, in relation to the post killing dismemberment of the bodies, to that seen in R v Knight [2001] NSWSC 1011, that case is clearly distinguishable by reason of the premeditation there involved, and the long history of cruelty and violence displayed by that offender, which made her a very obvious and serious danger to society. 81 The maximum sentence available for murder, pursuant to s 19A of the Crimes Act 1900 (NSW) is imprisonment for life, but s 21(1) of the Crimes (Sentencing Procedure) Act permits the imposition of a sentence of imprisonment for a specified term, where the case falls outside the extreme case to which s 61 of the Act applies, or outside the "worst category" of cases of which the Court spoke in Ibbs v The Queen (1987) 163 CLR 447 at 451 to 452. 82 Subject to the defendant remaining drug free and away from the disastrous relationships into which he has ventured in the past, I am satisfied that his risk of reoffending is relatively low. The qualification which I have expressed is however a very significant one, the force of which cannot be ignored or understated in view of the past. Had I not been so satisfied, then the decision in Veen v The Queen (No. 2)(1998) 164 CLR 465, would have applied. 83 The case, nevertheless, is one in which there is no possible alternative other than to impose a significant sentence of full time imprisonment, since the offence of murder is the most serious in the criminal calendar, and is one which inevitably calls for a sentence which will suitably mark the community's abhorrence for the conduct which was here involved in the taking not just of one life, but of two lives.

SUBJECTIVE CIRCUMSTANCES 84 The defendant was born on 22 January 1969, and, at the time of the offence, was a disability pensioner.

Family relationships 85 His pharmacist father provided a statement indicating that the defendant was the last born in a family of four children, that he had finished his schooling after completing Year 10, that he had initially worked in a restaurant, hoping for an apprenticeship, but that had fallen through. In 1979 his mother contracted cancer, which was initially successfully treated, but re-emerged in a different form in 1987, during which year she died. The defendant, he said, had been particularly traumatised by these events. 86 He continued to live at home until 1996, but his father noticed that he was becoming quite distant and secretive. At that stage they parted company, and his father did not have any further contact with him until after the events which now bring him before the Court. 87 A letter which he had recently sent to the defendant was tendered, which confirmed the evidence given by him to the effect that they had recently become reconciled and that his father was prepared to support him. A similar letter of support was provided by his cousin, Nady Radic, a psychologist who had been visiting him in the remand centre over the last year. 88 His use of drugs had commenced at the age of 19 years, with cannabis, and had later moved on to amphetamines as his drug of choice. It was his use of benzodiazepines which had led to his arrest for breaking into a pharmacy and stealing Rohypnol tablets, resulting in his imprisonment in 1998, and later in his admission to the Odyssey House Drug Rehabilitation Centre. 89 It was clear from the various materials placed into evidence that, apart from the illicit drugs which he took, he had received prescription medication from a number of doctors, in the form of benzodiazepines and anti-depressants, for mood difficulties, testosterone treatment in relation to his reduced levels of that substance and his HIV condition, steroids for his body building and gymnasium activities, and methadone, even though heroin was not his major problem. 90 In his personal statement and evidence, the defendant confirmed the history assumed by the psychiatrists who had examined him, namely that his father had been an authoritarian and regimented figure who had abused him mentally and physically, who had continually belittled him for his lack of achievement, and whom he had feared. He also confirmed the history of schooling difficulties and of substance abuse which they had noted, and the circumstance that his father had effectively cut off all contact between them and with his sisters. 91 He confirmed that he had been drug free while in prison, where he is a head sweeper, that he intended to rehabilitate himself, to remain drug free into the future, and to deal with his health issues once this matter has been resolved. At this stage the only medication he is taking is Prozac for his depression.

Antecedents 92 The defendant has a relatively minor criminal history beginning in October 1988 with a fine for possession of cannabis. On 29 June 1992, he was sentenced to the rising of the court for three offences of break, enter and steal, one offence of steal from a dwelling house, and one offence of carrying a cutting weapon. On the same date he was placed on a recognisance to be of good behaviour for 2 years, in relation to another break enter and steal offence. 93 On 29 September 1995 he was placed on a recognisance for three years, with a condition that he continue alcohol counselling and enter a support accommodation program, following a conviction for stealing by finding. 94 On 7 August 1998, he was placed under further recognisances, each for two years, subject to supervision by the New South Wales Probation Service, following convictions for stealing from a dwelling and breach of a bail undertaking (non appearance). He received his first prison sentence, on the same date, when he was sentenced to two fixed terms of three months, each, for two break and enter a building and commit a felony (stealing offences), and to a minimum term of four months, with an additional term of six months, for an offence of break and enter with intent. These terms were to be served concurrently. He was also sentenced to the rising of the court for an offence of resisting an officer in the execution of his duty, and for an offence of possess prohibited drug. 95 His final appearance was in the Local Court, on 16 December 1998, when he was fined $1000 for assault occasioning actual bodily harm. He has been in continuous custody since 11 September 2001 and his sentence will date from that day.

HIV and Hepatitis C status - life expectancy prognosis 96 Various reports were provided in relation to the HIV status of the defendant, and to the complicating circumstance that he also has Hepatitis C. They show that he was first diagnosed as HIV positive in January 1998, and as Hepatitis C positive on 16 April 1997. 97 Dr Michelmore of the Albion Street Centre provided a report noting that recent blood tests "reveal some modest, but significant deterioration during the year 2002, both in regard to HIV infection and to the Hepatitis C infection". The HIV viral load was said to have stabilised at about 10,000 copies/Ml. That was described as a "low viral load". The CD4 count, however, was reported as having fallen from 868 on 9 November 2001, to 380 on 23 September 2002, indicating a significant deterioration. The ALT liver enzyme test was noted "to be mildly elevated", a finding which was said to be "significant". 98 With that background in mind, he expressed an opinion in regard to the defendant's life expectancy prognosis, with the caveat that an accurate prognosis was not possible, and with the advice that the Hepatitis C infection should be treated before he began HIV treatment. 99 He said that if the defendant elected to receive HIV treatment, his "long term prognosis should be excellent. With such a low viral load, the HIV would be easily controlled by antiretroviral drugs, and he should remain well indefinitely, perhaps even unaffected by HIV in the long term." He added that the management of this condition might also "ensure long term non-progression of hepatitis C". 100 He gave a caution that long term antiretroviral toxicities are a potential problem, and that the successful treatment of a patient does "very largely depend upon the patient's ability to take the treatment successfully". Missing doses, he explained "promotes the replication of virus in the presence of inadequate drug levels, and this eventually leads to viral mutation and drug resistance." He did not consider that the defendant required treatment at this time, but thought it likely that he would eventually require it, "perhaps as early as 2003". 101 If he elected not to receive treatment, then Dr Michelmore said, the long-term prognosis was "even more difficult to predict". His rough guess was that, in such circumstance, he would live for another 8 to 10 years approximately. 102 This report was supplemented by a report from Dr White of the Taylor Square Private Clinic, which was based solely upon a review of various documents provide to him, including the defendant's medical files, the pathology reports, and Dr Michelmore's report. Dr Taylor is a Sexual Health Physician in private practice at Taylor Square Private Clinic, and is also a staff specialist in sexual health medicine at Royal North Shore Hospital. He noted the reduction in the CD4 count, and stated that this brought the defendant into "the moderate class of immunodeficiency", the stage at which most HIV infected individuals will begin to notice symptoms. He also explained that people who delay their HIV specific therapy until their CD4 count is below 200, fare less well than those who commence above this level. 103 He said that the defendant's "exact risk of developing AIDS in the near future is difficult to quantitate, as it is dependant on many variables." By reference to the Mellors chart, which is used to calculate a percentage risk of the onset of AIDS, by reference to the patient's current CD4 and HIV viral load status, he said that, in the absence of HIV-specific therapy, the defendant had a 6.8%, 30.1 % and 53.5% risk of developing AIDS, in the next 3,6, and 9 years respectively. 104 If his CD4 count continued to decline, and his HIV viral load continued to rise, at the same rates as seen over the last 6 months, then, he said, the percentage risks mentioned would increase to 36.4%, 72.2% and 84.5% respectively. 105 If the results improved and returned to previous levels, then the risks would decrease significantly. He expected, however, that the defendant was more likely to progress than to remit, especially in view of the Hepatitis C co-infection. 106 Hepatitis C, he explained, was a condition commonly found in injecting drug users. Around 25 to 30% of those infected are at risk of chronic hepatitis, cirrhosis of the liver, and liver cancer. These adverse outcomes usually take between 15 to 40 years to develop, although HIV infected individuals have a more rapid progression, with higher rates of chronic liver disease. He thought it likely, from the history of the defendant's drug use, that he had been infected for at least 10 years. His recent rise in ALT levels suggested that his Hepatitis C was progressing, and in need of further assessment. The test for damage to the liver, he explained, was a liver biopsy, which is an uncomfortable and potentially dangerous procedure. Another option available is a genotype test which would be relevant for the likely response to treatment. 107 The mainstay treatment for Hepatitis C, in patients with a chronic condition and abnormal liver function tests, he said, was a combination of Interferon injections with Ribavirin tablets for at least 24 weeks. The treatment can be difficult to tolerate, and its success rate depends on the type of Hepatitis C present. Those patients infected with both HIV and Hepatitis C, he said, need preferably to be treated with the new Pergylated interferon and oral Ribavirin, for at least 6, and preferably 12, months. Pergylated Interferon, he said, is difficult to access at present, and it is likely that those needing it would have to enter a clinical trial. 108 One of the most common and significant effects of interferon, he explained, was major depression, which can be so severe as to require cessation of treatment. This he saw to be a potential problem in the case of the defendant, although without treatment his condition may progress to the point of irreversible liver damage. If that ensues, then the complications of HIV therapy would be amplified, since many of the drugs used in its treatment are metabolised in the liver and can cause "severe and potentially life-threatening liver toxicities." He said that, in the defendant's case, the cure rate may be less than 20% given his HIV status and the possibility of a less than favourable genotype result. 109 The HIV treatment, he explained, involved three main classes of drugs, each of which acts in a different way, to interfere with the life cycle of the virus. Most involve oral tablets that need to be taken once, twice, or three times daily. Therapeutic monitoring, he said, was necessary, in view of the variation between individuals in their ability to metabolise drugs, and the fact that the more drugs used, the greater is the risk of side effects and toxicity occurring. 110 All HIV drugs have side effects, he explained, sometimes involving fatal toxicity, and otherwise being of a nuisance value. Additionally, there is the problem of adhering to a sometimes complicated regime of taking up to 30 pills per day. "Pill fatigue" he said, is a common phenomenon, which can lead to suboptimal viral control and drug resistance, as well as enormous psychosocial impacts. 111 Treatment of the defendant's HIV, Dr White said, would be indicated, if significant HIV symptoms developed, or if his CD4 count dropped below 200. This could occur as soon as 6 to 12 months, or it may not appear for 5 to 10 years. 112 Such treatment, he agreed should follow treatment, and successful clearing, of his Hepatitis C condition. An initial regime of 2 NRTI drugs and 1 IV NRTI drug, he said, could be expected to have an 80-90% success rate of controlling the disease. Benefits of the treatment, however, he said were only likely if the defendant was able to adhere to his treatment regimen, to tolerate any side effects, and to avoid long-term toxicities. In that event his life expectancy could be 15 to 20 years given the currently available therapies. New and improving therapies might lead to an improved outcome. 113 Dr White said that if the defendant was unable to clear his Hepatitis C, or if he elected not to have it treated, then there was still "a good chance" that the progression of his HIV disease could be halted with the HIV treatment, that is, subject to the emergence of toxicities. 114 As Dr White noted, the impact of incarceration may be significant, in that it has the potential for preventing or interrupting a continuous supply of anti HIV medications. That arises from the circumstance previously noted, that any interruption in the daily dosing schedule may result in a rebound of viral load levels, and the development of resistant HIV strains, which then may not be easy to treat. Obstacles which, he suggested, had been experienced by other HIV positive patients while in prison, including those associated with dosing being restricted to one or two times daily, problems with access to and storage of medication, theft of drugs, the need for meal times and food types to coincide with the treatment regime, difficulties in providing medication and in passing on medical records when prisoners are transferred to a new facility, the need for access to specialist medical care, and the need for the maintenance of good general health which is itself associated with an adequate diet, rest and avoidance or minimisation of stress. 115 These circumstances have obvious relevance in relation to the sentences to be imposed, so far as they may impact upon the defendant in a way that is likely to make his imprisonment more arduous than that of other prisoners, and may also adversely impact upon the successful medical treatment of his life threatening illnesses, the symptoms of which can be significantly debilitating. In that event they may properly be taken into account in mitigation of sentence, and as a special circumstance: R v Burrell [2000] NSWCCA 262, and R v L NSWCCA 17 June 1996; see also R v Smith (1987) 44 SASR 587 at 589, and Bailey v DPP (1988) 62 ALJR 319. Otherwise ill health cannot be allowed to become a licence to commit crime or to be a basis for escaping punishment. 116 While the plea of guilty came relatively late, the matter having been committed for trial on 18 March 2002, and the defendant having been arraigned on 3 May 2002, it had always been the case that he had been prepared to enter a plea of guilty to manslaughter. The delay in the plea arose from the need for psychiatric assessment, which led to the adjournment of the trial which had been fixed for 22 July 2002. In those circumstances, in accordance with s 22 of the Crimes (Sentencing Procedure) Act, and the principles expressed in R v Thomson and Houlton (2000) 49 NSWLR 338 and R v Sharma [2002] NSWCCA 142, I propose to allow a discount in the order of 15% for the plea. 117 The criminality of the defendant involved needs to be addressed in two respects. First, in sentencing the defendant in relation to the murder of Akai, it is necessary to increase the sentence for that offence to some extent because of the Form 1 offences, in accordance with the reasoning noted in decisions such as R v Bavadra (2000) 115 A Crim R 152 and R v Barton (2001) 121 A Crim R 185. 118 Secondly, by reason of the fact that the defendant has committed two entirely separate murders, it is necessary to reflect the total criminality involved in that circumstance, and in accordance with the principles discussed in Pearce v The Queen (1998) 194 CLR 610, that there be an accumulation of sentence. 119 Had the case not shown the exceptional circumstances previously mentioned, the combination of two killings occurring within the space of one year, and the very great callousness displayed in the dismemberment of the bodies, would have left the defendant in the position where life sentences were a real possibility. 120 However, as I have noted, there were exceptional circumstances which reduced his objective criminality, to the point where determinant sentences should properly be imposed. 121 Nevertheless, the elements of personal deterrence and retribution continue to have considerable relevance for the present case, in view of the very serious criminality involved. While general deterrence is also important, for the reasons explained in R v Alexander (1995) 78 A Crim R 141, and R v Camilleri NSWCCA 8 February 1990, its relevance is, to a degree, muted by the somewhat exceptional circumstances which accompanied each killing, and by the mental state of the defendant, which together reduce its significance as a warning to others of the consequences of similarly offending: R v Scognamiglio (1991) 56 A Crim R 81. 122 The case is one where I am satisfied, in accordance with the principles outlined in R v Simpson [2001] NSWCCA 534, that special circumstances exist. 123 That follows particularly from the unusual hardship relating to the defendant's health, and to the fact that imprisonment is not conducive to the effective treatment of his medical conditions. It also relates to the need for an extended period of supervision on parole, if the defendant survives the non parole period, and to the fact that there will need to be a partial accumulation of sentence. 124 As I understand the evidence concerning the defendant's current HIV and Hepatitis C status, his prognosis for survival varies between 8 years and 20 years, depending upon whether he has antiretroviral treatment or not, and also depending upon how well he responds to it. The certainty of response is itself questionable, in view of his history of depression, his history of significant drug abuse, his concurrent Hepatitis C status, and the unpredictability of his tolerance for, or reaction to, the more potent antiretroviral drugs currently available. 125 In prison, for the reasons mentioned by Dr Michelmore, optimal HIV care may not be possible, so that any sentence imposed may in fact shorten his life span. Moreover, if he develops serious symptoms of the illness, they may not be treated as successfully within the prison medical system, as elsewhere. 126 The relevance of HIV/AIDS in sentencing has been considered by the Court of Criminal Appeal in a number of cases including R v Whittaker NSWCCA 15 July 1994, R v Doyle NSWCCA 25 March 1992, R v Niketic [2002] NSWCCA 425 and R v Giardini NSWCCA 25 February 1993. 127 What is known in the present case is that the defendant's HIV and Hepatitis C conditions have each progressed, in the way which was considered relevant in R v Doyle, and which permits R v Niketic to be distinguished. 128 Also of relevance is the remorse which the defendant has exhibited, and the significant progress which he has made towards rehabilitation since being taken into custody. The fact of reconciliation with his family and his desire to be free of illicit drugs into the future, do require encouragement through long-term supervision on parole. 129 These special circumstances, in my view, require a substantial reduction of the statutory ratio between the non parole periods and the head sentences. In coming to this conclusion I have not overlooked the circumstance that Executive Release, through the Royal prerogative of mercy or through exercise by the Parole Board of its powers under s 160(1) of the Crimes (Administration of Sentences) Act 1999, also remain a possibility, in the case of an offender facing a terminal illness, or an unexpected deterioration in his physical condition. The relevance of these factors in a case where the offender's life expectancy has been reduced by illness, itself a proper matter for consideration in the sentencing process, was noted in R v Jones (1993) 70 A Crim R 449. Notwithstanding that circumstance, the case remains an exceptional one, in which a significant departure in the statutory ratio is justified. 130 Damien Anthony Peters, I sentence you in relation the murder of Tereupii Akai, taking in account the matters on the Form 1, to imprisonment for 17 years to commence from 11 September 2001 and to expire on 10 September 2018. I fix a non-parole period in respect of that offence of 9 years, to date from 11 September 2001 and to expire on 10 September 2010. 131 In relation to the murder of Bevan James Frost, I sentence you to imprisonment for 17 years, to commence from 11 September 2005, and to expire on 10 September 2022. I fix a non-parole period of 9 years to date from 11 September 2005 and to expire on 10 September 2014. That will be the earliest date on which you will be eligible for release on parole. The overall head sentence is accordingly one of 21 years, with an effective non-parole period of 13 years. 132 The sentence for the second offence is to be partially concurrent with, and partially accumulative upon, that for the first offence. I have imposed equivalent head sentences for each offence, notwithstanding the fact that Form 1 offences have been taken into account in relation to the murder of Akai, as I consider the objective severity of the later offence to have been considerably greater. That follows from the short term nature of the relationship into which the defendant entered with the victim, being one into which he voluntarily entered, for his own purposes, and from the lesser degree of provocation offered by Frost, who unlike Akai, had not been responsible for the defendant's HIV status. 133 Finally, I add that I have received and considered, in accordance with the principles expressed in R v Mansour [1999] NSWCCA 180, and R v Bollen (1998) 99 A Crim R 510, a victim impact statement from the sister of Mr Akai, which clearly depicts the loss suffered by her, arising out of his death.

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