R v Poynton

Supreme Court of NSW|2018-10-26|Before: Schmidt J, Campbell J, Wilson J, Johnson J

Issues

In all of those circumstances there is no issue between the parties that Mr Poynton's long history of mental illness must be taken into account when he is now sentenced.
Indeed, on sentence there was very little in issue between the parties as to the basis on which Mr Poynton must be sentenced. They were agreed not only about the relevant facts, but also on the law which must be applied in arriving at Mr Poynton's sentence.

The Court's task on sentencing

Before turning to the agreed facts, I will shortly explain the Court's task in arriving at that sentence.
In arriving at any sentence, the purposes of sentencing specified in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) must be borne in mind. They are: "(a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community."
The sentence which is imposed on Mr Poynton must be determined having regard to the maximum penalty imposed for the offence of murder, namely life imprisonment, which is, however, a sentence reserved for extreme offences of that kind. Section 61(1) of the Crimes (Sentencing Procedure) Act thus requires that a sentence of life imprisonment only be imposed, if the Court is satisfied that an offender's level of culpability in the commission of the murder is so extreme, that the community's interest in retribution, punishment, community protection and deterrence can only be met through the imposition of a life sentence.
The Crown did not seek to establish that either of Mr Poynton's offences fell within s 61(1). Given the evidence I will discuss, I am satisfied that the parties' common position, that despite the undoubted seriousness of Mr Poynton's offences, the evidence establishes that they do not warrant the imposition of the maximum sentence upon him must be accepted.
The Parliament has also imposed a standard non-parole period of 20 years imprisonment for an offence of murder which falls in the middle of the range of objective seriousness of such offences: s 54A(2) and Pt 4, Div 1A table of the Crimes (Sentencing Procedure) Act. Such a non-parole period is the minimum period that an offender must serve in prison, before being eligible to be released on parole for the balance of the sentence imposed by the Court.
Both the maximum penalty and this standard non-parole period must be taken into account on sentencing, together with other relevant matters, in the way discussed by the High Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 and as is provided in s 54B of the Crimes (Sentencing Procedure) Act.
In accordance with s 54A of the Crimes (Sentencing Procedure) Act, the seriousness of Mr Poynton's offences must be assessed by taking into account only the objective factors established on the evidence, affecting the relative seriousness of each offence.
Mr Poynton's moral culpability for his offences must also be taken into account, in the way discussed by the High Court in Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38. There is no issue that the evidence as to Mr Poynton's background and longstanding, severe mental illness are relevant to the assessment of his moral culpability, so as to mitigate the sentence which would otherwise be appropriate to impose upon him, in the way discussed in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [37].
The identified aggravating and mitigating factors specified in s 21A of the Crimes (Sentencing Procedure) Act revealed by the evidence, must also be taken into account, as must any other objective or subjective factors which the evidence reveals, which affect the relative seriousness of Mr Poynton's offences. Account must thus also be taken of his subjective circumstances.
Questions of general and specific deterrence must also be considered on sentence, as must the principle of totality, which requires the totality of Mr Poynton's criminal behaviour to be considered and an appropriate sentence for all of his offending imposed upon him, in the way discussed in Mill v The Queen (1988) 166 CLR 59 at 63; [1988] HCA 70. Offenders suffering mental illness of the severity that Mr Poynton suffers may, however, mean that little weight can be given to general deterrence in the sentence, as explained in Muldrock v The Queen (2011) 244 CLR 120 at [53]-[54].
A discount of up to 25% for the utilitarian value of a plea may be given in accordance with s 22 of the Crimes (Sentencing Procedure) Act and the applicable guideline judgment given in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309. Such a plea can evidence not only a willingness to facilitate the course of justice, by saving the community the expense of a contested hearing, but it can also evidence remorse and an acceptance of responsibility for the offending.
The purpose of such a utilitarian discount is as the then Chief Justice explained in the guideline judgment, namely, to reflect the benefits which flow from a guilty plea for the efficiency and effectiveness of the criminal justice system as a whole, as well as to witnesses and victims who, as the result of such a plea, are spared having to give evidence and the personal rumination of traumatic events, which is inevitably involved in that process. Sentencing judges must thus identify these benefits when sentencing, in order to provide an incentive to offenders to enter such a plea, so that such benefits will, in fact, be derived: Thomson & Houlton at [115]-[123].
While in some cases a plea may not result in any discount at all, I am satisfied that this is not such a case: Thomson & Houlton at [157]-[158].
It is also common ground between the parties that despite the lateness of Mr Poynton's plea, he should receive a discount in line with the approach discussed in Haines v R [2016] NSWCCA 90. That was another case where a plea was entered after a fitness hearing and psychiatric advice as to the availability of a defence of mental illness. There it was held that the applicant entered a plea of guilty to a murder charge as soon as reasonably possible, after it was made apparent that the defence of not guilty of mental illness was no longer available to her. The Court found, taking the reason for the late plea into account, that the applicant was entitled to a full discount of 25% for the plea.
In arriving at a sentence all of the relevant factors must be taken into account by way of the instinctive synthesis which the High Court discussed in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51]. That requires that they must all be considered, their significance discussed and a value judgment made as to the appropriate sentence for both of Mr Poynton's offences. The result arrived at must also ensure that there is a reasonable proportionality between the sentence imposed and the circumstances of the crimes in question: R v Scott [2005] NSWCCA 152 at [15].
Regard must also be paid to s 44(2) of the Crimes (Sentencing Procedure) Act, which requires that the balance of the term of the sentence imposed must not exceed one-third of the non-parole period imposed upon him, unless it is found that there are special circumstances which warrant a departure from that ratio, in his case.
If there is to be any such adjustment, it must not be such as to reduce the non-parole period below the minimum term which justice requires the offender to serve, for the offence committed: Power v The Queen (1974) 131 CLR 623 at 628 - 629; [1974] HCA 26.
When sentencing an offender for more than one offence, the Court may also impose an aggregate sentence: s 53A(1) Crimes (Sentencing Procedure) Act. In such a case the Court must, however, indicate the sentences that would have been imposed, if separate sentences had been imposed for each offence assessed individually. I propose to impose such an aggregate sentence in this case.
In this case it is also necessary to mention the effect of the Crimes (High Risk Offenders) Act 2006 (NSW), which applies to "serious violence offences", which under s 5A, includes the offence of murder of which Mr Poynton has been convicted as the result of his pleas.
The effect of this Act is that the State may later apply to the Supreme Court for an order that the offender continue to receive supervision or remain in detention, at the end of the sentence. If the Court is then satisfied, to a high degree of probability, that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision, it may make an order under s 5B for the offender's extended supervision. An order for continuing detention may be made under s 5C, if the Court is then satisfied that adequate supervision will not be provided for the offender by an extended supervision order.

The agreed facts

The facts which the parties agreed included, in short, that: 1. Mr Edwards and Mr Poynton, then aged 21, had been close friends for about a year, as well as associates in a drug supply network that predominantly supplied the drug 'ice', around the Echuca township. Their relationship had soured over a robbery of the drug ice from another person, which had resulted in both Mr Poynton and Mr Edwards being threatened by others. 2. Ms Joyce and Mr Edwards were involved in a recently formed de-facto relationship. 3. Mr Poynton and Mr Edwards had arranged to meet in the early hours of the morning on a road near Moama, Mr Poynton claimed, because he was interested in buying ice and a gun from Mr Edwards. 4. Mr Poynton rode a trail bike to near the agreed location. He was dressed in dark clothes, a hat and gloves and armed with a shotgun, which he had concealed under his clothing. He later told police that he went armed, because he was concerned that Mr Edwards might pull a gun on him; take his money and his gun; that there was a price on his head; and that he was worried that he was going to get "hit". 5. Mr Poynton saw a car stop and park and so he waited, believing this possibly to be Mr Edwards. Another car, which he believed belonged to Ms Joyce, then drove past him and he flicked his headlights and it stopped. 6. When he approached that car, Mr Edwards was sitting in the driver's seat. Ms Joyce was the passenger. 7. Ms Joyce remained in the car while Mr Edwards and Mr Poynton had a heated conversation in front of the vehicle, over whether Mr Edwards had been having an affair with Mr Poynton's girlfriend. This escalated into a physical fight, in which Mr Poynton conceded defeat. 8. Mr Poynton then asked Mr Edwards to complete the deal for the gun and ice, but he was uncomfortable with the car parked nearby and so Mr Edwards drove a short distance further and then stopped at the side of the road. 9. Mr Poynton saw that the other vehicle had flashed its lights and later told police that this was what made him do what he did, because he then knew that the other car was with Mr Edwards. Mr Poynton said that he was paranoid and tripping out at the time. 10. After Mr Edwards stopped, Mr Poynton turned off the engine and lights of his bike, which he rolled to about 5 metres behind the parked car, to make himself somewhat hidden, due to the complete darkness. He then walked towards the car, holding the shotgun in both hands, to a position directly adjacent to the open driver's side window. 11. Mr Edwards was then sitting in the driver's seat with the seat belt on. Mr Poynton said "Hey bud!", before pointing the shotgun into the open window and firing one shot which hit Mr Edwards in the upper right shoulder. Due to its close proximity, this shot caused a fatal injury. 12. The unknown vehicle still parked further up the road then hastily left the scene. Mr Poynton then walked around the car towards the passenger side. Ms Joyce opened her door and attempted to run, but Mr Poynton fired one shot at her, causing significant injury to her left shoulder, arm, neck and face. 13. Ms Joyce ran past the trail bike for approximately 40 metres, with Mr Poynton chasing her. She then turned, moved and lunged towards him with a large hunting style knife, but Mr Poynton was able to hit Ms Joyce in the side of the head with the gun, which he then reloaded. 14. Mr Poynton then fired another shot at Ms Joyce, causing significant further injuries, including a mutilation of her right bicep; a spray pattern injury to her upper left rear shoulder and top of back area; a fracture to the neck of her left humerus; as well as injury to her left shoulder and left arm. Ms Joyce fell to the ground, but was able to return to her feet and make her way back to the car where she collapsed outside the open passenger car door. Her injuries also proved fatal. 15. Mr Poynton then disposed of the shotgun in a heavy shrub area on the way to his sister's house at Echuca, where he arrived at about 4 am, where he made admissions to her, about what had just occurred. On his way home he was arrested by Victorian police and later charged with riding a stolen motor bike. 16. Mr Edwards and Ms Joyce's bodies were found at about 9.30 am, when a 000 call was made to police. 17. On 14 November Mr Poynton made further admissions to a friend and later to his parents, after he had injected himself with ice. His mother spoke to police and he was arrested and participated in an interview. After initially claiming to have been at a social gathering near Echuca, Mr Poynton gave full and frank admissions about his involvement in the murders. He said to police, "I know I've got to take responsibility for what I done..." and later when asked why he had volunteered this information, he said "Because I feel bad for it." 18. Mr Poynton also said that he had been using ice for two to three days before the murders; that he was addicted to ice; that he was paranoid and that others were more paranoid than him. He also told police about his mental health problems, which included hearing voices and his belief that ice helped make the voices go away. He also said that his problems had been getting worse, he felt, because of his use of large amounts of the drug and then not sleeping for many days. He also said: "I know, I know, you know, I've done it and I know I killed them. And I just freaked out and left.............what does it mean, like there's no fucken excuse for what I done, but since Police didn't locate a gun in his car, it was a set up anyway, obviously because I was there to buy a gun, you know what I mean, so my mental health and paranoia and I just fucken, I fucken killed them man. That's why that's all ...." 1. Mr Poynton was later taken to where he said that he had disposed of the shotgun, but it was not found.
Since his confession Mr Poynton has been the subject of repeated psychiatric assessment. The parties also agreed to a summary of the psychiatric reports. In short that included:

Dr Chew's August 2015 report 1. Dr Chew's review of Mr Poynton's earlier medical records noted entries in 2011 recording that he was suffering psychotic paranoia and auditory hallucinations; 2. Mr Poynton had been treated as an involuntary patient under the Mental Health Act 2007 (NSW) in 2013, at a time when he was suffering suicidal intent and was diagnosed to be suffering a drug induced psychosis and an evolving major psychotic illness. He was admitted to the psychiatric unit from 1 to 15 July, when he was discharged on a Community Treatment Order. 3. In custody Mr Poynton's psychosis had been noted consistently and the psychiatrist Dr Jones had diagnosed him to be suffering "likely chronic mental illness complicated by ICE". 4. In December 2014 the psychiatrist Dr Nguy diagnosed him with "Drug Induced psychosis (?Schizophrenia)". 5. Dr Chew also diagnosed Schizophrenia with current active (symptoms), psychotic symptoms and Polysubstance Dependence, with the main substance of concern being methamphetamine (ICE), having a history of documented psychotic symptoms which had persisted many months after the cessation of methamphetamines. He also noted that Mr Poynton had a family history of mental illness. 6. Dr Chew's opinion was that Mr Poynton was then unfit to be tried.

Dr O'Dea's February 2016 report 1. Dr O'Dea considered that Mr Poynton presented as "acutely psychotic", with auditory hallucinations to which he was actively responding; paranoid delusions, including regarding prisoner officers and court officials; acute agitation and distress; abnormal affect, poor attention and concentration; and problems with insight and judgment. He considered that Mr Poynton's schizophrenic illness had yet to come under adequate control. 2. Dr O'Dea noted that Mr Poynton's illness was complicated by Polysubstance Use Disorder, in particular Amphetamine and Alcohol Use Disorder and that despite ongoing psychiatric treatment for up to 10 months and reported abstinence from illicit substances, at least over the majority of that time, he still presented as acutely psychotic. 3. Dr O'Dea also considered that Mr Poynton was unfit to be tried and that due to the apparent nature and severity of his schizophrenia and his limited response to treatment, that Mr Poynton should be admitted to an appropriate secure psychiatric facility under the Mental Health (Forensic Provisions) Act 1999 (NSW) for intensive psychiatric assessment and treatment, which might bring his illness under control.

Dr Chew's March 2016 report 1. Dr Chew noted 2015 records which noted an increase in voices and Mr Poynton believing a small lump on his bicep was a chip inserted to listen to him talk. In January 2016 Dr White, a treating psychiatrist, had noted that while there had been an improvement in the voices, they persisted. 2. Dr Chew considered that Mr Poynton's primary psychiatric issue remained Schizophrenia and that he displayed ongoing psychotic symptoms despite high doses of antipsychotic medication, although they had improved since July 2015. 3. Mr Poynton's significant substance misuse disorder was currently in remission, in a controlled environment, but despite some improvement in his mental state, Mr Poynton remained on balance unfit. The degree of his delusions involving officers and the court then rendered him unable to meaningfully understand the process, instruct his lawyers and participate in a trial. 4. Dr Chew considered that Mr Poynton was then not fit to be tried; that his primary psychiatric issue remained schizophrenia and that he displayed ongoing residual symptoms in the form of voices and low grade paranoia and also had a significant substance use disorder, in self-reported remission in a controlled environment.

Dr O'Dea's May 2016 report 1. Dr O'Dea also considered that on balance, Mr Poynton was unfit to be tried. 2. Although his schizophrenic illness had responded at least partially to ongoing treatment and relative abstinence from illicit substance use in custody, Mr Poynton still reported significant symptoms and presented with significant signs of a schizophrenic illness, that had yet come under adequate control.

July 2016 Mental Health Review Tribunal Determination 1. The Tribunal took account of Dr White's July 2016 opinion, that Mr Poynton was fit to be tried. 2. The Tribunal noted Dr White had diagnosed Mr Poynton as "very likely suffering from schizophrenia characterised by auditory hallucinations and persecutory delusions including third person auditory hallucinations". 3. Dr White also noted that Mr Poynton had a long and substantial history of substance use, particularly methamphetamine, which raised the possibility of drug induced psychosis being his true diagnosis. However given the time his symptoms had persisted, Dr White's view was that seemed less likely, although his ongoing use of psychoactive substances could not be excluded.

Dr Chew's October 2016 report 1. Dr Chew noted that Mr Poynton's primary psychiatric issue remained schizophrenia, and that he displayed ongoing symptoms in the form of voices and low grade paranoia. His substance use disorder was in remission in a controlled environment. 2. Dr Chew considered that Mr Poynton was then fit to be tried.

Dr Nielssen's December 2016 report 1. Dr Nielssen considered that Mr Poynton suffered from schizophrenia and substance use disorder in remission, noting that he had been treated with antipsychotic medication generally reserved for chronic forms of schizophrenia. He remained impoverished in his thinking and had a pattern of intellectual impairment that was consistent with a chronic form of schizophrenia. 2. Dr Nielssen also noted a family history of mental illness; Mr Poynton's reported use of regular drugs, large quantities of methamphetamines as well as cannabis, drugs known to trigger psychotic illness. Because his symptoms had persisted long after he took any kinds of illegal drugs, this suggested that they were due to underlying mental illness, rather than a drug related condition. 3. Dr Nielssen concluded that a defence of mental illness was open to Mr Poynton on the basis of a chronic form of schizophrenia, which produces an abnormality of mind recognised by law to be a disease of the mind. It had resulted in a defect of reason, in the form of the delusional belief that Mr Edwards planned to kill him and also that he should obey voices wanting him and urging him to commit the offences. 4. While Mr Poynton was aware of his actions in firing the gun, on the balance of probabilities he was deprived of the ability to recognise that his actions in committing the offence were morally wrong, as his perception of the events was from the standpoint of his underlying delusional beliefs, that he was in danger and had to obey hallucinated voices. 5. Dr Nielssen also considered that Mr Poynton had available a partial defence of substantial impairment by abnormality of mind under s 23A of the Crimes Act 1900 (NSW), because he had an abnormality of mind at the time of the murders, arising from his underlying chronic schizophrenia illness. That abnormality had affected his perception of the events and his ability to judge right from wrong. As he reported, Mr Poynton believed that he was in danger from the deceased and had to obey the hallucinated voices. 6. Dr Nielssen considered that Mr Poynton would require lifelong treatment with an adequate dose of antipsychotic medication, closely supervised by a forensic mental health service.

Professor Greenberg's May 2017 report 1. Professor Greenberg had earlier examined Mr Poynton in 2012, when he was in custody for juvenile offending. 2. In 2017 he considered that Mr Poynton could be suffering Polysubstance disorder, psychotic illness, Schizophrenia Disorder or Chronic Drug induced psychosis, with a history of ADHD, and personality disorder or traits. 3. He was not fully convinced that Mr Poynton was suffering schizophrenia at the time of the murders, or that auditory hallucinations played any direct commanding role, ordering him to kill his victims, where he had to comply with or obey the orders. Mr Poynton was however, either intoxicated, or had a drug induced perceptual disturbance, auditory hallucinations and paranoid thoughts or both, at the time of the offences. 4. Professor Greenberg was of the view that Mr Poynton did not qualify for a defence of mental illness, because he likely had a degree of reasoning and composure about what he was doing and its wrongfulness at the time. 5. While Mr Poynton's drug induced psychotic symptoms would likely qualify him for a disease of the mind, on balance he did know the nature of his acts and that they were legally and morally wrong. 6. At the time Mr Poynton did have drug induced perceptual disturbances, namely non commanding voices, but the significant feature would have been his heightened or exaggerated paranoid thoughts, from his voluntary use of crystal methamphetamine. This likely would have substantially diminished his capacity for self-control, at that time.

Dr Chew's September 2017 report 1. Dr Chew maintained that Mr Poynton's primary diagnosis was most likely schizophrenia, but that he had improved significantly with treatment and displayed very low grade symptoms in the form of "voices" and low grade paranoia, which likely represented residual symptomology. His persisting psychotic symptoms post stimulant use indicated a brain vulnerability on the spectrum to schizophrenia. He also had significant substance use disorder currently in remission. 2. Dr Chew remained of the opinion that a mental illness defence may be available to Mr Poynton, despite the lack of clarity as to the psychotic symptoms he had at the time of his offending. It was likely that he was then experiencing some kind of psychosis that was persecutory in nature, heightening his anxiety and flight or fight response. He thought that this had affected Mr Poynton's ability to judge right from wrong at the time. 3. In the circumstances he also had the partial defence of substantial impairment available.

Dr O'Dea's April 2018 report 1. Dr O'Dea considered that Mr Poynton suffered a schizophrenic illness, which had continued to respond to ongoing treatment, with an additional polysubstance use disorder, caused by his substance abuse. 2. Despite Mr Poynton's inconsistent and contradictory accounts of the alleged offences and of his mental state at the time, on balance it was reasonable to assume that his schizophrenic illness made a defence of mental illness available to him, as well as the partial defence of substantial impairment.

The entry of Mr Poynton's later pleas to the murder charges reflects his decision not to pursue either defence at trial, he having accepted that at the time of his offences he had both the necessary capacity and intent to have committed those offences, despite what he had later told those who had examined and treated him.
His pleas also reflect, I am satisfied, his acceptance of his responsibility for his actions and support the existence of the remorse which he has repeatedly expressed for those actions.

The objective seriousness of the offences

Mr Poynton accepted that he had an unlawful intention to kill both of his victims, while knowing the nature and quality of his acts. On the agreed facts the parties also agreed that objectively, both of Mr Poynton's offences were serious, but different.

Mr Edwards

In Mr Edwards' case it was submitted for Mr Poynton that his murder fell below the mid-range of seriousness of such offences, because his death was the result of a shot fired at close range, in circumstances likely to cause his death, which Mr Poynton knew was wrong, despite his intoxication and paranoia, but which were connected with his mental illness.
It was also submitted that the evidence established that there had been no premeditation involved in Mr Edwards' shooting, which had occurred spontaneously, as the result of Mr Poynton's sudden loss of control, fuelled by his paranoid thoughts and exacerbated by his perceptual disturbances, which involved hearing voices. Further, that Mr Poynton was then so affected by his consumption of methamphetamine, that he was highly intoxicated, or at least in the grip of drug induced perceptual disturbances, as the result of drug withdrawal. This had exacerbated his mental condition and explained his loss of control.
While it was accepted that Mr Poynton taking the gun which he concealed, as well as ammunition with him to the meeting, had been premeditated and meant that Mr Poynton must have contemplated use of the gun, it was argued to have been what he observed at the meeting place, which had caused his paranoia and fuelled his decision to kill his victims as he did.
Mr Edward's shooting had thus involved a spontaneous response by a paranoid and mentally compromised offender, who feared that he was being set up, as he later told police.
In assessing the seriousness of the offence, it was also submitted to be relevant to take into account that because Mr Edwards had been shot without warning, while seated in the car wearing his seatbelt, he may never even have appreciated what was happening, unlike Ms Joyce, who would have been terrified by what Mr Poynton did.
The Crown did not take issue with these submissions, accepting that the way in which Mr Edwards was shot likely meant that he had no opportunity to respond or defend himself.
Even so I am satisfied that the submissions advanced for Mr Poynton on this issue may not be entirely accepted, despite what the psychiatric evidence established and what was agreed as to the circumstances in which Mr Poynton came to kill Mr Edwards.
That is because while there is no doubt that Mr Poynton was paranoid, affected as he was at the time he killed Mr Edwards by both his mental illness and the drugs he had taken, the evidence establishes that this killing was the result of a premeditated shooting, committed in circumstances where Mr Poynton had considerable capacity both to plan and to control his actions, before and after he fired the fatal shot, despite the effects of his mental illness and the drugs he had taken.
This conclusion flows from the evidence that Mr Poynton arranged to meet Mr Edwards despite, as he told the psychologist Ms Duffy in 2018, fearing for his life and having earlier stayed away from Mr Edwards, who he had come to believe was out to get him. That undoubtedly reflected his paranoid thinking at the time, that being the result of his illness and drug abuse.
Also necessary to take into account, however, is that not only did Mr Poynton arrange to meet Mr Edwards, alone on a dark country road in order to buy drugs and a gun from him, he rode there on a trail bike carrying a loaded, shortened shotgun, which he concealed, as well as ammunition, while dressed in dark clothing, including a hat and gloves.
Then, despite having observed the car parked nearby and having seen him driving Ms Joyce's car to the meeting spot, with her with him, he engaged in a fight with Mr Edwards outside the car. Having conceded defeat, Mr Poynton did not leave the scene, as he undoubtedly could have, but asked Mr Edwards to move the car. Despite then having seen the other car flash its headlights at Mr Edwards, still Mr Poynton approached the car in the darkness, coasting on the bike which he had turned off.
Mr Poynton then walked to the car, carrying the loaded shotgun and shot Mr Edwards at short range through the window without warning, in such a way that clearly neither Mr Edwards nor Ms Joyce had any appreciation that Mr Poynton was about to execute Mr Edwards as he did. It appears that at this point, the other car left the scene.
While what Mr Poynton said to police some days later, when he admitted having shot Mr Edwards and Ms Joyce, about the meeting having been a set-up, is consistent with the paranoia he was suffering from, how he prepared for the meeting and what he did there does not accord with a lack of premeditation. Nor does it accord with the shot which killed Mr Edwards having been fired spontaneously; or simply as the result of a sudden loss of control, fuelled by Mr Poynton's paranoid thoughts and perceptual disturbances.
That is underscored by what Mr Poynton did after he shot Mr Edwards, not only shooting Ms Joyce as she fled from him, but chasing her in the darkness, overcoming her when she turned and lunged at him with a knife, hitting her in the head with the shotgun, reloading the gun and shooting her again. He then road away on the bike, disposing of the shotgun which police have never recovered, on the way to his sister's house.
Mr Poynton having the capacity, despite his illness and the effects of the drugs he had ingested, both to prepare for the meeting and to shoot Mr Edwards, as he clearly had in contemplation, given the preparations he had made and how he acted after the fight, puts beyond doubt that there was some premeditation involved in that shooting. The firing of that shot was not merely the result of his compromised mental condition and did not occur spontaneously, because he saw the other car flash its head lights, nor simply as the result of a sudden loss of control; or as the result of a spontaneous decision to act as he did.
In the result I am satisfied that the evidence establishes that Mr Edward's murder was somewhat more serious than was contended for Mr Poynton. While much less serious than Ms Joyce's murder, objectively, it fell within the mid-range of seriousness of such offending.

Ms Joyce

Mr Poynton accepted that Ms Joyce's murder fell above the mid-range of seriousness of such offending, given the callous and determined nature of her shooting, but it was argued, not greatly.
The Crown submitted, however, that the nature and seriousness of Ms Joyce's murder was very different to Mr Edwards' shooting, the evidence establishing as it did that it had been a horrific murder. That was because Ms Joyce, knowing what had happened to Mr Edwards, had run for her life after she was first shot, while in physical pain from her wounds, going through an experience which was submitted to have been beyond imagination, before she was killed by the second shot which Mr Poynton fired.
I am satisfied that the Crown's submissions must be accepted, the evidence establishing that Ms Joyce's callous murder fell significantly above the mid-range of seriousness of such offending.
That must be accepted, given that not only would Ms Joyce have been terrified from the moment that Mr Edwards was shot, but also in awful pain from the injuries which the first shot Mr Poynton fired at her had caused. She must also have been aware that she was running for her life from Mr Poynton as he chased her in the darkness; trying to save herself by turning to lunge at him with the knife she ran with and then being hit in the head with the shotgun. That caused her to fall to the ground, where she was shot again, suffering further injury, before finally making her way back to the car, where she died helpless and alone.
It also cannot be overlooked that when Mr Poynton left the scene neither Ms Joyce, Mr Edwards nor anyone else, posed any conceivable threat to Mr Poynton and yet he left them where no help was available and did not call for any aid. Instead he drove to his sister's house, disposing of the shotgun which has never been recovered, in the bush along the way. In assessing the objective seriousness of this murder, that cannot be overlooked.

Moral culpability

It is also necessary to consider Mr Poynton's moral culpability for his offences. Ordinarily, on the evidence I have discussed, an offender's moral culpability for such awful offending would be assessed as being considerable.
In this case account must, however, be taken of the evidence which establishes that Mr Poynton, still now only quite a young man, has not only had a difficult background since childhood, but has also long suffered very considerable mental health problems. That evidence, as the parties agreed, establishes that his moral culpability for his offending was considerably reduced, that having contributed to his offending in a material way.
The evidence includes the October 2018 report of the psychologist Ms Duffy, which records that Mr Poynton's mother had eight other children from her relationships and that after his parents' separation, he was raised by his father who abused alcohol, his mother, also an alcoholic who suffers borderline schizophrenia, being unable to look after them.
Mr Poynton was diagnosed with ADHD as a child and had trouble learning at primary school. He also had behavioural problems, fighting and truancy at high school, where he began smoking cones with mates in year 7, instead of attending school. He left in year 8 after receiving a flogging from his father for his truancy. He can, however read and write and after various testing in October 2018, Ms Duffy concluded: "His verbal reasoning and other functions such as working memory and processing speed were below average, although his non verbal intelligence was in the low average range, suggesting that his educational limitations may have contributed to the lower verbal intelligence result. His below average memory and processing speed may have been affected by many factors such as the sequelae of his mental illness and drugs use."
Mr Poynton's reported alcohol abuse dates from age 11, with daily cannabis use from age 12 and smoking and injecting large quantities of ice daily, from age 13-14, which he financed by selling that drug until his arrest after the murder. Then aged 21, he was injecting ice up to 7 times a day and his alcoholic binges also continued. In custody he has abstained from that abuse, consistent with the reported improvement in his condition.
Mr Poynton also has a considerable history of self-harming behaviour, when voices which wanted him dead told him to cut himself. He has suffered auditory hallucinations since his mid-teens, while smoking cannabis, as well as having a history of aggression and impulsivity from a young age. There was also a family history of mental illness, a maternal uncle suffering schizophrenia and a maternal aunt bipolar disorder. He had also been treated for bipolar disorder.
Despite past treatment while in custody, on release he stopped taking his prescribed medications and resumed drug and alcohol abuse. In 2013 there was an involuntary admission at Bendigo Hospital under the Mental Health Act after police brought him to the emergency department, where he was treated with antipsychotic drugs and a community treatment order was made. He was then identified as having an evolving major psychotic illness, but received no further treatment until he was in custody in November 2014.
Mr Poynton's problems are also reflected in his criminal record which dates back to age 14, when he spent time spent in juvenile justice. While at one time he performed some scaffolding work, he became unemployed when he began abusing drugs and ice and remained unemployed until his arrest for these offences.
Such drug addiction is generally not a mitigating factor on sentence, reflecting as it does choices which offenders make: R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 at [198]. Self-induced intoxication is also not to be taken into account as a mitigating factor: s 21A(5AA) of the Crimes (Sentencing Procedure) Act.
On the evidence Mr Poynton's mental health problems have, however, been contributed to by his very considerable, escalating drug abuse from a very young age. That was accepted in Henry at [273], as being capable of pointing to a factor such as impaired mental or intellectual capacity, rather than choice, as explaining such abuse.
There is ample evidence that Mr Poynton suffers such impairment, despite the differing views which the psychiatrists who have treated or examined him at different times have reached. His history is replete with episodes of self-harm and suicide attempts, as well as diagnosis and treatment for various conditions, including in custody.
In the result, I am well satisfied that while Mr Poynton accepts that his mental impairments do not provide a defence, or even partial defence to his offences, they do considerably reduce his moral culpability for that offending, which must be reflected in his sentence. They will also mean that the imprisonment to which he will be sentenced will weigh more heavily upon him than on other offenders, as explained in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177].
Had this not been the case, the sentences imposed upon Mr Poynton would have been considerably higher.

Deterrence

I am also satisfied that another result of Mr Poynton's longstanding problems is that general deterrence must be given less weight in arriving at his sentence, than would have been the case if he was not suffering from those problems: Muldrock at [53].
The evidence I have discussed also, however, gives rise to the need to take into account the countervailing considerations of the kind discussed in Veen v The Queen (No 2) (1988) 164 CLR 465 at 476-477; [1988] HCA 14.
As to specific deterrence Mr Poynton's longstanding problems, particularly when his mental illness has been untreated or inadequately treated, which have undoubtedly been adversely impacted by his longstanding resort to drug and alcohol abuse when he has had access to such substances, means that the sentence imposed upon him must deter him from further offending behaviour. Regard must also be paid to the obvious need to protect the public from his actions: R v Engert (1995) 84 A Crim R 67 at 71 and Henry at [28].
Despite Mr Poynton's response to the treatment he has received since he has been in custody, where he has not been able to abuse the substances he has used in the past, I am satisfied beyond reasonable doubt that the evidence establishes that Mr Poynton does present a considerable ongoing danger to the public, given the nature of his mental illness and the serious adverse impact which his past significant substance abuse has had on his behaviour.
Given the entry of Mr Poynton's pleas, however, I do consider that he has achieved real insight into the nature of his problems, which provides some basis for hope that there will be positive long term impact on his behaviour, from his continued treatment and abstinence in custody. Whether that will be maintained when he is again eventually released cannot, however, be accurately predicted.
In the result, the danger which Mr Poynton undoubtedly poses means that the mitigation which would otherwise flow from his mental conditions must be somewhat reduced, as was the case in R v Wright (1997) 93 A Crim R 48 at 51.

Aggravating and mitigating matters

Aggravating and mitigating matters arising under s 21A of the Crimes (Sentencing Procedure) Act, must also be taken into account.
I am satisfied that while s 21A(2)(c) specifies that use of a weapon can be an aggravating matter to be taken into account, in this case Mr Poynton's use of the shotgun was an intrinsic part of his offences and should not be further take into account by way of aggravation. Gratuitous cruelty is also an aggravating factor under s 21A(2)(f), but the cruelty involved in Ms Joyce's murder has been taken into account in the way I have explained, in assessing the objective seriousness of that offence and should also not be taken into account by way of further aggravation.
Mitigating matters relevant to take into account include the entry of Mr Poynton's pleas: s 21A(3)(k); the agreement the parties reached on the relevant facts: s 21A(3)(l) and his remorse: s 21A(3)(i). His early admissions to police and eventual pleas also provided assistance which must be taken into account: s 21A(3)(m).
I have already discussed the premeditation involved in his offending, but I accept that these murders were not the result of any planned or organised criminal activity, such as that involved in a contract killing, as was submitted for Mr Poynton: s 21(3)(b).
Mr Poynton is still a young man who, I also accept, is genuinely remorseful for his offences and has accepted responsibility for his actions, as evidenced by his early admissions, his later pleas and the insights they reflect. Despite this and also his quite good record in custody, given the nature and seriousness of his prior criminal record and unfortunate long term mental health and drug and alcohol abuse problems, I am satisfied that there must still be real doubts about his prospects of rehabilitation: s 21A(3)(h).
Given the evidence about these problems, nor has it been established that he is unlikely to re-offend: s 21A(3)(g).

Discount for the plea

In light of the procedural history I have outlined, during which Mr Poynton's serious mental illness was examined, I am satisfied that this is a case like that which arose for consideration in Haines at [30], where under s 22 of the Crimes (Sentencing Procedure) Act his plea, although only entered shortly before trial, must be taken into account.
Mr Poynton finally decided to accept his guilt and not to rely on defences he was advised he had available, even as the result of his more recent assessments. In all of those circumstances, I accept the parties' common position that in reality, he entered his pleas at the earliest opportunity and should thus receive a 25% discount.

Mr Poynton's personal circumstances

I have already referred to the evidence about Mr Poynton's difficult personal circumstances, which must also be taken into account on sentence. It is not necessary to add anything further.

Other relevant cases

For Mr Poynton reference was made to a number of other cases, as well as sentencing statistics. The limits of the assistance which such materials can provide and the importance of the Court's necessary consideration of the unifying principles which those sentences both reveal and reflect, should not be overlooked: Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [41]. I have already discussed the applicable principles.
The authorities referred to include other cases where the maturity of young offenders in early adulthood also arose for consideration, including those raised in an environment where all too readily violence was a first response, but no particular case was relied on as providing guidance as to the particular sentences to be imposed on Mr Poynton. I am satisfied that the circumstances which arose for consideration in those other cases were so different to what here arises for determination, that no assistance can be derived from the actual sentences imposed on these other offenders, in arriving at Mr Poynton's sentence.
In the result it is unnecessary to discuss the detail of what was decided in those authorities.

Application of the principle of totality

Given the one course of criminality during which Mr Poynton committed these two murders, there was no issue between the parties that there must be considerable concurrence in the sentences imposed upon him and the Court must not content itself with simply doing the arithmetic in each case and passing the sentence which that produces: Mill at 63. The sentence must, however, finally be one which is "just and appropriate" to the totality of his offending.
That is because account must also be taken of the fact that the severity of a sentence is not simply the product of a linear relationship, but may increase at a greater rate than an increase in the length of a sentence, even when in cases of very serious offending such as here, where a very long sentence must be imposed: R v MAK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [15]-[18].
If the ultimate sum of all of the sentences exceeds what is called for, given the whole of the offending, there must be a downward adjustment in the sentence: Postiglione v The Queen 1997) 189 CLR 295; [1997] HCA 26 at 308. A part of the Court's task being to ensure that the overall sentence is neither too harsh, nor too lenient: R v KM [2004] NSWCCA 65 at [55]. That may not, however, result in some kind of discount for multiple offending: R v Knight (2005) 155 A Crim R 252; [2005] NSWCCA 253 at [112]
It must also be taken into account that particularly for young people such as Mr Poynton, extremely long total sentences may also be "crushing", in the sense of inducing a feeling of hopelessness or destroying any expectation of a useful life after release. That can both increase the severity of a sentence and destroy such prospects as there may be, of an offender's rehabilitation and reform.
In this case I am also satisfied that while in some cases, an offender may not be entitled to the element of mercy which is involved in the adoption of this constraint, this is not such a case: MAK at [17].

Special circumstances

Given all that I have discussed I am, however, satisfied that no finding of special circumstances should be made in this case, despite Mr Poynton's youth and his mental health and substance abuse problems, which have been taken into account on sentence in the way I have explained.
Mr Poynton will, undoubtedly, require continuing close supervision on his eventual release from custody, given the dangers he clearly poses. I am satisfied, however, that the application of the statutory ratio will achieve a period of such supervision, given the length of the sentence which must necessarily be imposed upon him.

Victim Impact Statements

In arriving at Mr Poynton's sentence, account must also be taken of the victim impact statements provided by Mr Edward's mother, daughter and sisters and that provided by Ms Joyce's mother and brother, the Crown having made an application under s 28(4) of the Crimes (Sentencing Procedure) Act, which permits such statements to be taken into account in determining punishment for an offence, on the basis that the harmful impact of the death on members of the victim's immediate family, is an aspect of the harm done to the community, if the Court considers it appropriate to do so.
There was no objection to that application and I accept that in this case, it is appropriate to take these statements into account, in that way.
Each of these victim impact statements were read in open court, undoubtedly moving all those who heard them. They each shed very considerable light on the harm which the deaths which Mr Poynton caused, has done.
As has so often been said by the Court when offenders are sentenced in cases involving a death, all human life is precious and the death of any person caused by such offending, is a harm inflicted on the community, as a whole.
I thus offer my very deepest sympathy to the families and friends of both Mr Edwards and Ms Joyce, who each suffered the needless, painful and lonely deaths I have discussed. The suffering of those who loved them and what they now must each continue to bear, is acknowledged here in court today, as a sign of the awareness of the community of which we are all members, of the ongoing sadness and grief which these awful offences have caused.
It is hoped for them that the Crown's pursuit of these proceedings, in the way I have explained and their resolution in the sentence which will be imposed, will provide them all with some small comfort, shedding light as that does on how our society and the legal system it has devised has operated, in order to deal with the terrible offending involved in the murders of both Mr Edwards and Ms Joyce.

The aggregate sentence

In imposing an aggregate sentence on Mr Poynton, the Court must first give indicative sentences, giving effect to the 25% discount I have explained he is entitled to receive for his pleas. The indicative sentences I have arrived at after that discount is: 1. Mr Edwards - a non-parole period of 10 years and 1 month and a balance of term of 3 years, 5 months, that being a total sentence of 13 years, 6 months. That reflects a starting sentence of 18 years. 2. Ms Joyce - a non-parole period of 14 years and 6 months and a balance of term of 5 years, that being a total sentence of 19 years, 6 months. That reflects a starting sentence of 26 years.
Taking into account the considerations which arise under the principal of totality, I have concluded that the aggregate sentence which must be imposed on Mr Poynton is a total non-parole period of 18 years, 6 months and a total sentence of 24 years, 9 months.
Mr Poynton's sentence must commence from 14 November 2014, the date of his arrest. This means that the earliest date that he will be eligible for release on parole is 13 May 2033. That will depend on him then convincing the Parole Authority that he should then be released on parole. His sentence will expire on 13 August 2039.

Orders

For the reasons I have given, I now make the following orders: 1. Daniel Poynton you are convicted of the murders of Jamie Edwards and Joelene Joyce. 2. For those offences you are sentenced to a term of imprisonment of 24 years, 9 months commencing on 14 November 2014, with a non-parole period of 18 years and 6 months expiring on 13 May 2033, with the total sentence expiring on 13 August 2039.

Amendments 08 November 2018 - typographical errors in catchwords 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: 08 November 2018

Mental Health (Forensic Provisions) Act 1990(NSW)

Mental Health (Forensic Provisions) Act 1999(NSW)

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