THE OFFENDER'S INTENTION
53The Crown submitted that the evidence overwhelmingly supported the conclusion that the offender intended to kill the deceased. In advancing that submission the Crown relied upon a number of matters.
54Firstly, the Crown relied upon the offender's statements (referred to at [24] - [27]) prior to his arrival at her apartment. The Crown submitted, in effect, that these were not to be regarded as simply empty threats.
55Secondly, the Crown relied upon the nature of the attack which was perpetrated upon the deceased. The Crown pointed, in particular, to the extreme force applied in inflicting the fatal injuries, the fact that a number of other objects were used in the attack, and the overall appearance of the murder scene including the deposits of blood in the bathroom, in the hallway and on the wall. The Crown also relied upon this evidence in support of the proposition that the offender's murder of the deceased was not impulsive, and was the result of at least some degree of planning.
56Thirdly, the Crown pointed to the evidence of the offender's actions leading up to the deceased's death which, it was submitted, demonstrated a high degree of cognitive function and ordered thinking. In this regard the Crown cited (inter alia) the offender's ability to drive, his ability to communicate both in person and by text message, and the ability to converse and make
himself understood.
57Mr Stratton SC submitted that I should not find that the offender intended to kill the deceased, nor should I find that the offence was premeditated. He submitted that the offender was "well affected" by drugs. He also pointed to (inter alia) the fact that the offender took no weapon to the apartment and the fact that he took D with him for what was said to be no conceivable purpose. Mr Stratton also submitted that the offender's acts after the event of asking D to make the call to emergency services and trying to contact the deceased were inconsistent with the proposition that he intended to kill her.
Consideration and conclusion
58The offender's statements to the deceased prior to his arrival at Ultimo provide, in my view, a direct insight into his intention at the time. Whilst I accept that expressions to the general effect of "I am going to kill you" can sometimes be said without any accompanying intention, the fact is that in the present case the offender's threats were repeated and were actually carried out. In these circumstances I do not accept the offender's evidence before the jury that he did not mean what he said.
59I accept that the offender had been smoking ice and consuming alcohol in the period leading up to the deceased's murder. However, for the reasons I have already expressed, it is not possible to determine the precise quantity of ice and alcohol which the offender consumed, and thus the precise level of his intoxication. However, the expert evidence given at the trial did establish that one of the effects of the use of ice is increased aggression. I am satisfied that the offender was affected in that way at the time he killed the deceased.
60I am also satisfied that despite his intoxication, the offender was not confused at the time he killed the deceased and that he remained capable of ordered thinking. Dr Stephen Allnutt, Forensic Psychiatrist, expressed the opinion that on the material which had been provided to him, the effects of the offender's use of ice and consumption of alcohol did not extend to his being confused at the relevant time. Dr Allnutt was well qualified to express that opinion, perhaps more so than any other expert who was called in the trial to give evidence. I accept his opinion in that regard. I also accept the opinion of Dr John Raftos, an accident and emergency specialist who was called in the offender's case, who said that particular aspects of the offender's behaviour, including his ability to decide to make a call to emergency services, required "use of a number of cognitive functions and a number of parts of the higher section of the brain" (at T651 L30). I further accept the opinion of Dr Raftos that the offender's acts of disguising his appearance and pulling his sleeves down as he left the apartment were consistent with "a fairly high order of thinking" (at T652 L12).
61The attack upon the deceased was extensive and sustained, as evidenced by her injuries. I am mindful of the need to be cautious in drawing inferences of intention from the nature of the injuries sustained by the deceased, in circumstances where the offender was intoxicated (see Bellchambers v R [2008] NSWCA 235 at [36] per Allsop P). However the extent of the injuries sustained by the deceased is a matter which, in combination with a number of others, supports the conclusion that the offender intended to kill her.
62I accept that the offender did not take any weapon to the apartment with him. In light of the nature of the fatal injuries occasioned to the deceased, no weapon was required (see AM v R [2012] NSWCCA 203 at [79]). Why it was that the offender took D with him to the city is not known but in any event, D was not present when the deceased was killed. The making of the call to emergency services and the attempts made by the offender to call the deceased in the ensuing days, are at least consistent with the accused having realised the enormity of what he had done. They are not, in my view, factors which tend positively against a conclusion that at the relevant time, the offender had intended to kill the deceased.
63For all of these reasons I am satisfied that the offender intended to kill the deceased. I am also satisfied that he held that intention at least from the time that he told the deceased that this is what he was coming to do. To that extent, there was some premeditation.
STATUTORY AGGRAVATING FACTORS
64The only statutory aggravating factor relied upon by the Crown is that contained in s. 21A(2)(j) of the Sentencing Act, namely the fact that the offence was committed whilst the offender was on conditional liberty. There is no doubt that this is the case and it is a circumstance which comes about in the following way.
65On 22 April 2010 the offender was arrested and charged with the following:
(i)supplying a prohibited drug, namely 143.3 grams of benzylpiperazine;
(ii)possessing an unregistered firearm; and
(iii)possessing a quantity of ammunition without a licence or permit.
66The offender was refused bail when arrested. However, apparently as a consequence of the Crown's delay in providing a certificate of analysis of the substance which was the subject of the first charge, the offender was granted bail on 1 December 2010, having been in custody for a period of 7 months and 9 days.
67On 8 April 2011, the offender appeared for sentence on all three charges before the District Court at Campbelltown and was convicted. In respect of the first matter, the sentencing judge imposed a period of 15 months imprisonment, which he structured in such a way that the non-parole period amounted to that period which had already been served by the offender, with the balance representing the parole period. In respect of the charge of possessing a quantity of ammunition, a conviction was recorded without the imposition of further penalty. In respect of the charge of possessing an unregistered firearm, the offender was released on a bond pursuant to s. 9 of the Sentencing Act, the conditions of which included that the offender:
(a)be of good behaviour;
(b)accept the supervision of the Probation and Parole service; and
(c)obey all reasonable directions of that service with respect to alcohol and other drug rehabilitation.
68It was just three months after the imposition of these sentences that the deceased was killed. It follows that at the time of the deceased's death the offender was subject, in effect, to two forms of conditional liberty. Firstly, because of the manner in which the sentence of imprisonment had been structured, he was on parole. Secondly, he was subject to the bond imposed pursuant to s. 9 of the Sentencing Act. I accept Mr Stratton's submission that there should not be "double counting" because of the fact that the offender's liberty was conditional in two respects. That said, and however one views it, the offender's conditional liberty at the time of the deceased's murder is an aggravating factor.
THE OFFENDER'S INTOXICATION
69In have already concluded that the offender smoked ice and consumed alcohol on the day of the deceased's murder, but that other than increased aggression, it is not possible to determine the precise effect of those substances upon him at the time. The question arises as to how the offender's intoxication should be treated for the purposes of sentence.
70Despite the focus during the trial upon the offender's use of illicit drugs and their effect, there was no reference whatsoever to his use of steroids during the time leading up to the deceased's murder. However on sentence, the offender gave evidence (commencing at T15 L37) that from late 2010, and up to the time of the deceased's murder, he had been in the habit of taking steroids. When asked if he had stopped using them at any time, the offender said he had done so "on and off".
71The offender was cross-examined in relation to this issue as follows (commencing at T16 L13):
"Q. Mr King, do you say you were on steroids at the time you killed Jazi?
A. Yeah, I was using steroids, yes.
Q. To what degree were you using them?
A. Once, twice a week I was injecting one mil of Sustanon and one mil of Deca, and DecaBolin. One mil of each. At other times I was if I was using Trimbolin, I injected every second day, like Monday Wednesday Friday, I'd have the weekend off. That was Trimbolin.
Q. Did those drugs increase your aggression?
A. I suppose they could have. All I know when I went to the gym and trained, it helped me put on weight, and I could lift more weights and things like that, so".
72The Crown's cross-examination then turned to the offender's knowledge of the effect upon him of the use of drugs generally, and the effects of ice in particular (commencing at T16 L37):
"Q. If you (sic) say what was the reason for your offending behaviour in 2005, do you think it was your drinking?
A. Could have been drinking and drugs, yeah.
Q. What sort of drugs?
A. Cocaine, speed, ecstasy.
Q. So by the time of 2005, you understood that if you took drugs and drank alcohol, your response in a situation that was, not a good one for you, would be to be acting in a violent way?
A. Yeah, I'd say so.
Q. Then by April 2010, when you attacked the two people in the street, Miss Lasaqa and Mr Lindsay, were you taking drugs at that time?
A. Yes.
Q. What drugs were you taking?
A. I think on that day, it was me (sic) birthday, I had a number of drugs, it would have been cocaine, ice, ecstasy. I can't really remember about the others. I was taking a few different drugs, and I was drinking from (sic) the majority of the day at the races, and then left to go to the hotel.
Q. Were you taking steroids then too?
A. Yeah I could have been, yeah.
Q. The mixture of those substances that you were taking, were they to blame for you attacking the two people in the street Mr King, or are you to blame?
A. I am to blame.
Q. You knew after that time, didn't you, that if you took drugs and alcohol like that, you could respond very violently; do you agree?
A. After that time, yeah."
73The offender confirmed that at least from the time of commission of the 2010 offences he was aware of the fact that the drugs he was taking would cause him to be violent (commencing T18 L17):
"Q. So from that time you knew that if you were on these types of drugs, you were a very dangerous and violent person; do you agree?
A. Yeah, I agree, yes.
Q. And yet over and over again you chose to take those drugs; do you agree with that?
A. I agree.
Q. With the full knowledge that if a situation came up that caused you to get angry, you would, and could, explode in a terribly violent fashion?
A. I never thought about the consequences before I was taking drugs. I never thought about like
Q. Well Mr King, did you not think about the consequences of what you had done to the two people in the street when you attacked them at the time?
A. At the time, as I said, I wasn't thinking".
74Yet again in further cross-examination the offender said (commencing at T19 L11):
"Q. You have had many years of drug and alcohol abuse, haven't you?
A. Yes.
Q. And it is true to say that you could predict that you would respond very aggressively and violently if you were abusing those types of substances, would you agree?
A. Yes."
75Dr Olav Nielssen, Psychiatrist, gave evidence in the offender's case on sentence. Dr Nielssen had examined the offender on 14 March 2013, prior to the commencement of the trial, to determine whether the offender had any psychiatric disorder which might have been regarded as being relevant to his behaviour. Dr Nielssen said (commencing at T26 L6) that one effect of steroid use is increased aggression. He then gave the following evidence:
"Q. In effect, would the use of steroids and the use of methylamphetamine have a cumulative effect in relation to increasing aggravation (sic)?
A. Yes."
76The Crown submitted that in all of the circumstances, the fact that the offender committed the offence whilst affected by ice (and to a lesser extent alcohol) should be regarded as an aggravating factor. In support of this submission the Crown relied upon the offender's admitted awareness of the adverse effect which was likely to result from taking drugs, and upon his particular awareness that such use would cause an increase in his aggression, and an increase in his propensity to act violently.
77Mr Stratton submitted that in the circumstances of the present case, the offender's use of drugs at the time of his offending was neither an aggravating factor nor a mitigating factor. He submitted that I should come to the conclusion that the degree of the offender's intoxication as a result of the use of drugs and alcohol had caused him to act in a way which was out of character. He also submitted that I should have regard to the offender's use of steroids and his lack of awareness of any connection between that use and the propensity for increased violence.
78Intoxication, whether it is brought about by alcohol or drugs, may explain an offence but will ordinarily not mitigate the penalty, except where the intoxication is the result of an addiction, and the original addiction did not involve a free choice. An offender cannot expect a reduction in sentence merely because the offence was committed whilst intoxicated (see Bourke v R [2010] NSWCCA 22; (2010) 199 A Crim R 38 at [26] citing R v Rosenberger (1994) 76 A Crim R 1 per McClellan CJ at CL with whom Price J and RA Hulme J agreed).
79In R v Coleman (1990) 47 A Crim R 306 Hunt J (as his Honour then was) observed at 327 (Finlay and Allen JJ agreeing):
"Only one matter of general principle was debated, and that was the extent to which the appellant was entitled to have his intoxication at the time of this offence taken into account in mitigation. The degree of deliberation shown by an offender is usually a matter to be taken into account; such intoxication would therefore be relevant in determining the degree of deliberation in the offender's breach of the law. In some circumstances, it may aggravate the crime because of the recklessness with which the offender became intoxicated; in other circumstances it may mitigate the crime because the offender has by reason of that intoxication acted out of character...Where the reason for the offender's intoxication is a self-administered drug rather than alcohol, the cases suggest that that fact may well be more likely to aggravate than to mitigate."
80More recently, in Mendes v R [2012] NSWCCA 103 Davies J (with whom Whealy JA and Schmidt J agreed) observed (at [73]):
"(The Applicant's) background, demonstrating a link between his drug use and aggression which was understood by the Applicant, and the fact that he had abstained from using ice for eight months prior to the incident in question, suggests that any use of drugs and alcohol on the day in question was a choice he made, and cannot be regarded as being mitigated by the fact that he had been introduced to drugs as a teenager."
81Having made reference (at [74]) to the decision in Stanford v R [2007] NSWCCA 73 his Honour concluded (at [75]):
"In the present case the intoxication came about from two self-administered drugs as well as alcohol. There was deliberation involved in both the drug-taking and the alcohol consumption, or at the very least recklessness. The statements made by the Applicant to Mr Glancey suggest that the ingestion of the drugs for the specific purpose of becoming aggressive was not out of character. In all of those circumstances far from the drug-taking being a mitigating factor, it was an aggravating one, although the Sentencing Judge did not specifically regard it as such".
82The evidence in the present case does not support the conclusion that the offender smoked ice for the specific purpose of becoming aggressive. However, on the offender's own evidence his use of drugs was not out of character. Moreover, the link between that use and the virtual inevitability of increased aggression and violence on his part was something which he clearly understood, and of which he had been aware for a long period of time prior to the deceased's murder. He conceded in cross-examination that despite his awareness of such matters, he continued to take drugs.
83It follows that at the time of the deceased's murder, and indeed for some considerable time prior to that, the offender knew that he had a drug addiction, and knew of the results which would inevitably flow from it (see R v Fletcher-Jones (1994) 75 A Crim R 381 at 387).
84There are a number of difficulties with the submission made by Mr Stratton concerning the offender's use of steroids, and what was said to be the offender's lack of awareness of a connection between the use of steroids and increased aggression.
85Firstly, as I have noted, the first reference in the evidence to the offender's steroid use was in the course of the sentence proceedings. Whilst he gave a history of that use to Dr Nielssen prior to the trial, it was not something which was disclosed to Dr Allnutt, nor to any of the other experts who gave evidence at the trial.
86Secondly, and in any event, the overwhelming weight of opinion evidence which was given in the trial was that the use of ice of itself increases aggression, and increases the general propensity for violent behaviour.
87Thirdly, whilst Dr Nielssen gave evidence that the use of steroids and ice would have a cumulative effect in terms of increased aggression, he did so in very general terms. The offender's evidence of the frequency with which he was taking steroids, and more importantly his evidence as to the amount he took, was also imprecise. Subjectively, the only effect of steroid use to which the offender pointed was an increase in weight, and a commensurate increase in physical strength.
88Even if it is accepted that the simultaneous use of steroids and ice can cause a cumulative effect in terms of a person's aggression, the degree of that cumulative effect in the present case is not something which I can determine. What can be said with some certainty, in light of the expert evidence given at the trial, is that the ingestion of ice by itself has that effect. It is also clear from the offender's evidence on sentence that he knew of that effect at the time of the deceased's murder, and had known of it for some considerable time prior to that.
89I am unable to accept Mr Stratton's submission that the offender's intoxication caused him to act in a way which was out of character. I accept that the level of violence exhibited by the offender and perpetrated upon the deceased was over and above that which he had previously displayed. However on the offender's own evidence, his use of drugs and his propensity towards violent behaviour as a result could not be regarded as being out of character.
90For all of these reasons, the offender's intoxication should be regarded as an aggravating factor. It is one which carries with it significant moral culpability for the predictable consequences of the choice that he made to continue taking drugs in the knowledge of their likely effect upon him (see R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 at [173] - [207]).