42 The opened condom packet is also suggestive of sexual activity but in the absence of the condom or evidence of how long the packet had been there or of the tidiness of the occupants of the flat, I do not regard myself as justified in drawing any relevant inferences from the presence of the packet itself.
43 It should be said that the records of Mr Smit's ERISP suggest very strongly that he was not in full possession of his faculties at the time of the interview. Some responses are explicable on the basis of a desire not to be frank but there are clear indications that he may have been suffering the effect of alcohol or drugs. Furthermore, a psychologist's report to which I refer at greater length below provides grounds for treating anything Mr Smit said at that stage with reserve. On the other hand, there is nothing in Mr Smit's appearance in, or the terms of, the interview which positively suggests that his account of attempted rape may have been deliberately false.
44 It should fairly be said that during the trial there was no attempt to support Mr Smit's account of intervening in an attempted rape. And, as I have indicated, Ms Tarrant denied any such suggestion and Mr Smit's account in that regard was not admitted in her case before the jury. Nevertheless, I have thought it proper to theorise as I have done because the evidence is before me and is sufficiently striking as to merit, if not require, consideration by a sentencing tribunal.
45 Neither was there any attempt to deal with the evidence differently during the sentencing proceedings. When I raised the topic, the attitude of the Crown was to submit that the suggestion was speculative, that of counsel for Mr Smit that I should proceed on the basis that the latter confronted Mr Collins and struck him in circumstances where Mr Smit thought there was provocation and that of counsel for Ms Tarrant that he did not seek to argue against the theory. Ms Flannery, appearing for Ms Smit did not direct attention to the topic.
46 But the evidence seems to me to go further. Although I do not suggest it justified anything like the level of violence towards Mr Collins which occurred, it at least raises as a reasonable possibility that the attack on him was something he provoked and that some of the wounds inflicted were a result of that provocation. That is sufficient to lead me to reject the Crown submission that the prisoners' conduct should be regarded as above the middle of the range of seriousness in murder offences. However, given the way in which the trial and sentencing proceedings were conducted, and the absence of any suggestion by Mr Smit that any provocation by the deceased caused or inspired other than measured or moderate responses, I am not disposed to go further in my findings. In so concluding I bear in mind also s21A(3)(c) of the Crimes (Sentencing Procedure) Act.
47 It is also appropriate to record that the Crown case as it was submitted to the jury was that, in the case of each Prisoner, that person could and should be found guilty if a principal offender, a party to a joint criminal enterprise, or present and intentionally encouraging or assisting a principal offender. Thus the jury's verdict in relation to each of the Prisoner's means no more than that they were satisfied that each prisoner had participated to the lowest of these levels of criminality. Implicitly, that participation may have been to a small degree.
48 Am I satisfied beyond reasonable doubt of any greater involvement? The Crown disclaimed any suggestion that Ms Tarrant's fingerprints on the bat tended to show that she was the principal offender and there is nothing else to show that her role was more than at the lowest level of participation.
49 Mrs Smit's statement to Mr Ranse to the effect that "both of us, but mainly Steve" had killed Craig "with a cricket bat" and that "he belted the fuck out of him" does satisfy me that she had some active involvement going appreciably beyond mere presence and a minimum level of encouragement or assistance. Her statement to the effect that she had blood through her hair and, implicitly, that it was enough to need covering up with a beanie also argues persuasively in the same direction.
50 As I have indicated, Mrs Smit's statement to Mr Ranse is not evidence against Mr Smit. Although there is a temptation to conclude from his sex and size and the acknowledgement in his ERISP of handling the bat that Mr Smit is more probably the person who inflicted the fatal blow with the cricket bat, I do not feel able to so conclude beyond reasonable doubt. On the other hand, I am satisfied that Mr Smit also had some active involvement going appreciably beyond mere presence and a minimum level of encouragement. There are the matters to which I have just referred, there is also his admitted involvement in some physical activity against the deceased, there is the lie I see in his ERISP and to which I have referred, and there is the blood spatter on his clothes. It defies belief to suggest that all of that could have been deposited on him while he slept blissfully through Mr Collin's death. Equally, it is impossible to believe that, having involved himself to the extent he concedes, he thereafter abstained, sitting or standing peaceably by. And neither in his ERISP or anywhere else is there any suggestion he tried to stop the extensive battering - I put aside the knife wounds for the present - Mr Collins received. I do not forget that the onus is on the Crown and that it is a high one but I am satisfied that his involvement also was more than at the lowest level of participation.
51 Although I see it as possible that at least some of the knife wounds on the deceased were acts of defence or responses to provocation, the number of scratches, lacerations, abrasions and bruises, the fatal wound to his larynx, the state of disarray of the lounge room and the widespread distribution of blood in it leaves me with no doubt that he was subjected to great and prolonged and unjustified violence. I have no doubt also that that violence was at the hands of one or more of the prisoners. However, the evidence against the prisoners individually does not permit me to make findings more adverse to them than I have done. Equally, I am satisfied that they are not entitled to findings more favourable. I am unable to conclude to the relevant standard that any particular prisoner inflicted the fatal wound or wounds. Of necessity, all of these findings, and those hereafter, have a bearing on the magnitude of the sentences to be imposed.
52 In the foregoing, I have not attempted to refer expressly to all of the detailed evidence which there was in the trial or to all of the possible inferences which may arise from each piece of evidence considered in isolation. Nor do I suggest that my analysis provides a comprehensive account of all that occurred in and about the time of Mr Collins' death. However it is the best I can do having regard to the evidence available and fairness to the Crown and the prisoners required that I do that much. I might perhaps add one further thing. The number of, and distance between areas where blood was found in the lounge room and the evidence of projected blood lead to the conclusion that Mr Collins moved or was moved around after he was stabbed and not just in the course of being dragged to the kitchen and that some of the battering of him occurred after that early movement.
53 There is no evidence of premeditation and although the degree of violence argues for there having been an intention to kill, the extent to which each of the prisoners was, or may have been affected by alcohol and/or illegal drugs leads me to the conclusion that I cannot be satisfied that that was their intention.
54 I turn to the subjective circumstances of each Prisoner. Mr Smit was born on 19 July 1970. He grew up in a close, loving and well supervised family. His father was a pastor and this seems to have caused some difficulties in Mr Smit being accepted by his peers. With a view to being accepted, Mr Smit then went out of his way to be a troublemaker and also became involved in drugs and alcohol. He seems to be of above average intelligence but at school lacked application and generally performed below his ability. He left school in year 11. He became an apprentice motor mechanic but did not complete his apprenticeship. For some time thereafter he has been in employment, progressing in one place from yard person to manager of a car yard.
55 However it seems clear that most of Mr Smit's adult life has been dominated by drug taking, cocaine, "speed" and alcohol. For a time he was taking both rohypnol and methadone. Although the Pre-sentence Report does not mention it, use of the latter drug indicates that at some time Mr Smit was probably addicted to heroin. Detoxification efforts have failed. It appears that during the months prior to the commission of the offence for which Mr Smit falls to be sentenced, he was indulging in a cocktail of alcohol, rohypnol and amphetamines though withdrawing from methadone (because his then prescriber would not prescribe both rohypnol and methadone). His parents and others described his conduct to the author of the report as bizarre and irrational.
56 Mr Smit's antecedents include a number of driving offences, including driving while unlicensed or when his licence had been cancelled, driving with an excess concentration of alcohol, stealing and offences involving the possession, supply and administration of prohibited drugs. Most such offences have been committed more than once. He has also been convicted of possession of an unauthorised and unregistered firearm. His only conviction for violence would seem to have been in 1994 in the Australian Capital Territory when he was convicted of assault occasioning actual bodily harm and received a 2 year suspended sentence. His most severe punishment seems to have been 6 months imprisonment.
57 Pending his trial Mr Smit was on bail. During this period he returned to his family where he exhibited, according to the Pre-sentence report, a marked change in his behaviour and attitudes and freedom from drugs. The author of the report said that it now seemed that Mr Smit had set himself some positive goals and had demonstrated he was capable of engaging in a positive lifestyle. Mr Smit is well regarded by Correctional Officers and while on remand has worked within the prison system where he progressed to a position of trust.
58 The report also records remarks made by Mr Smit relevant to the circumstances, and his mental state, at the time of Mr Collins death. Having regard to their untestable hearsay nature, and to the fact that they could have been given in the witness box but were not, I do not regard these remarks as bearing any appreciable evidentiary weight.
59 There was also tendered on Mr Smit's behalf, a psychological assessment of him prepared by Associate Professor Hayes of the University of Sydney. Again on the basis of what Mr Smit said to the author, that report provides more detail of Mr Smit's history of drug taking. It says that by the time he was 18 or 19 he had a severe drug problem, using cocaine, speed and alcohol. It was his drug problem that led to him not completing his apprenticeship. At about 21 he was imprisoned for possession and supply of cannabis. On release he returned to substance abuse, then becoming addicted also to heroin and rohypnol. Professor Hayes records that after some unsuccessful attempts at detoxification and rehabilitation, by 1997 when he and Mrs Smit married, Mr Smit was drug free, apart from Methadone although, somewhat inconsistently, she says that Mr Smit was at that time still addicted to rohypnol. He seems to have then led a normal life for some 2 years, working during that period.
60 Then, according to the report, a number of things happened. Mr Smit decided to come off methadone. His usual doctor moved and Mr Smit had difficulty in obtaining rohypnol. Mr Smit started using speed "in order to get energy and motivation". Mr Smit said that he thought he then started to become psychotic and suffered from panic anxiety attacks and delusions. It is unnecessary for me to detail the balance of Mr Smit's history beyond reporting that he had on one occasion placed a shotgun near a phone and cocked it so the person on the other end could hear the noise; he harassed a lot of people until he obtained rohypnol and "felt OK again". Police came to his house because of the shotgun incident. After thinking for a time that they were not real police and were going to kill him and obtaining the shotgun again he rang the emergency number and had the genuineness of the police confirmed. One may infer that it was this incident that led to the weapon charges to which reference has been made. According to the antecedent report the offences, the subject of those charges were committed on 5 July 2001.
61 Professor Hayes concluded that at the time of Mr Collins' murder Mr Smit was probably suffering from a drug induced psychosis, with paranoid ideation and that his drug use at the time substantially contributed to the circumstances of the offence, impaired his ability to make reasoned decisions and to foresee the consequences of his actions. She observed that rohypnol abuse has been associated with violent crime and amnesia for the crime.
62 Professor Hayes also observed that at the time she interviewed Mr Smit, 30 May 2003, he was talkative and co-operated well in the assessment and that at that time there was no evidence of any psychological or psychiatric symptoms. She opined that Mr Smit's prognosis was good provided he remain abstinent. I accept this prognosis and the condition which formed part of it. There is no evidence of contrition but the inference that Mr Smit has had brought home to him the consequences of his previous lifestyle is one I draw.
63 Mr Smit married his co-offender in 1997. They have 2 children, born drug dependent, who are cared for by their maternal grandmother.
64 Mrs Smit's antecedents include 10 offences of larceny and other similar offences, one of assault for which she was fined $200, and some minor traffic offences. Her most severe punishment seems to have been imprisonment for one month. Born in 1970, her first recorded conviction was in 1982, and the next in 1993.
65 Mrs Smit's mother, Mrs Talbot, gave evidence. She said that Mrs Smit had left school during year 11 and then worked for some 3 years and became pregnant and engaged. Mrs Talbot gave evidence that the fiancé was Mrs Smit's soul-mate. When Mrs Smit was 5 months pregnant and nearly 19 her fiancé was killed in a car accident. Within a short time Mrs Talbot's father with whom Mrs Smit was close also died and soon after Mrs Talbot's mother became a paraplegic. Within this period Mrs Smit's other grandmother also died.
66 After the death of her fiancé and these other events things started to change in Mrs Smit's life. She started to work as a barmaid and within 18 months her mother discovered that she had started to use drugs. That drug use continued until she went into custody. Just prior to Mr Collins' death Mrs Talbot had a large number of phone calls from her and formed the view that at that time Mrs Smit was very unstable.
67 Since Mrs Smit went into custody Mrs Talbot has had regular contact with her, observing "I can speak to my daughter now… and she is a beautiful person back again." Mrs Talbot said she believed Mrs Smit was no longer using drugs and would not do so again because of the serious price she had paid. Mrs Talbot said that she and her husband intended to support their daughter until she was released from custody. They have been looking after Mrs Smit's four children.
68 There was tendered on Mrs Smit's behalf a report of a forensic psychiatrist, Dr Nielssen. Mrs Smit said to Dr Nielssen she was in an unstable state at the time of Mr Collins' death in consequence of a new doctor telling her that prescription of methadone and rohypnol together was not permissible, forcing her to choose and in consequence foregoing methadone. To Dr Nielssen Mrs Smit said her unable state was nothing to do with Mr Collins' death and did not result in impairment of her memory to the extent that she would not have remembered the events. She maintained she knew nothing about Mr Collins' death.
69 Mrs Smit told Dr Nielssen she began using illicit drugs after the death of her partner, she felt immediate improvement in mood and was strongly attracted to the use of drugs thereafter. She remained an intermittent amphetamine user until her arrest with periods of very heavy use of up to 7 grams per day in multiple injections. She was introduced to heroin which eventually led her to "the gutter at Cabramatta." Her choice to stop methadone was in consequence of previous experiences withdrawing from benzodiazepines. Those experiences included withdrawal seizures. Mrs Smit told Dr Nielssen she had worked for parts of 10 of the last 15 years. Her previous jail sentence was for recurrent shoplifting during a period of heavy heroin use. Mrs Smit told Dr Nielssen she had resumed amphetamine use to overcome the symptoms experienced when withdrawing from methadone.
70 Dr Nielssen observed that methadone was notoriously difficult to stop suddenly and amphetamines are known to make people more aggressive and Mrs Smit had reported a previous episode of amphetamine induced psychosis. The doctor opined that Mrs Smit's prognosis was directly related to her capacity to remain abstinent from drugs. His impression was that she had a better than even chance of maintaining long term abstinence after her release.
71 Also in evidence was a Pre-Sentence Report relating to Mrs Smit. It adds little to the evidence of her mother and that contained in Dr Nielssen's report. It does observe that Mrs Smit's children have been in the permanent care of her parents and that she had made efforts to kerb her drug use at some stage. To the author of the Pre-sentence Report and Dr Nielssen, Mrs Smit denied involvement in Mr Collins' death.
72 During the sentencing proceedings, Ms Ramsay who, between February and May 2002 was employed as a chaplain at the Mulawa Correctional Centre, was called and a report from her tendered. She said that Mrs Smit showed a desire to rehabilitate herself from the use of drugs and seemed to be motivated by the shock at where she had wound up and wanted to be a better person with a more positive future. In her report Ms Ramsay also referred to activities Mrs Smit had participated in whilst in prison, activities which indicate a willingness to work and improve herself and that she has demonstrated trustworthiness and some responsibility. Mrs Smit seems also to be seriously addressing her past problems. Although drugs and alcohol were available in Mulawa and Mrs Ramsay had often seen others affected, she had never, so far as she could tell, seen Mrs Smit affected by them. Asked if she knew what was motivating Mrs Smit to rehabilitate herself, Mrs Ramsay said "the shock of where she ended up".
73 Again I am disposed to accept the opinion of the expert which is in evidence to the effect that Mrs Smit's prognosis was directly related to her capacity to remain abstinent from drugs. Mrs Smit has had perhaps less chance than Mr Smit to demonstrate her prospects but her repeated denials of involvement in Mr Collin's death do not help in persuading one that she has fully faced up to the issues to be dealt with. I am not persuaded that any remorse Mrs Smit has goes beyond consideration of herself although, at the end of the day, I am disposed to think I should accept Dr Nielssen's impression that she has a better than even chance of maintaining long term abstinence after her release.
74 Born in 1972, Ms Tarrant's first recorded offence seems to have been in March 1987, of malicious injury. Her antecedents include 17 offences in all, including offences of assault on a female, aggravated assault on a female, resisting arrest and assaulting police, a number of offences of dishonesty, possession of a prohibited drug and possession of a prohibited weapon. She was also convicted on one occasion of unlawful wounding although for that offence she was released on a recognisance to be of good behaviour for 12 months. Her most severe punishment was 6 months imprisonment commencing on 31 August 2001 for breaking and entering and being in possession of goods reasonably suspected of having been stolen.
75 Information concerning Ms Tarrant's past was contained in a pre-sentence report and a report from Anna Robilliard, psychologist. It appears that Ms Tarrant's father was an alcoholic who physically abused her mother until they finally separated when Ms Tarrant was about 12. He assaulted Ms Tarrant on one occasion. For a time Ms Tarrant then moved between her parents' residences.
76 By age 13 or 14 she was living in a youth refuge and then a number of similar institutions. She became pregnant when 14 or 15 and when she announced the pregnancy to the father he beat her badly. Ms Tarrant then went to live with her mother. A second relationship lasted some 5 years and resulted in 2 children before it fell apart. She then lived with a third partner for a couple of years, this relationship also resulting in 2 children.
77 In May 1996 the youngest of these children died from SIDS and according to what Ms Tarrant told Ms Robilliard, "after that I fell apart". Ms Tarrant says that DOCS offered to mind the children temporarily while Ms Tarrant recovered but separated the children and fostered them. In 1997 Ms Tarrant signed custody of the children over to their respective fathers apparently on DOCS recommendation and on condition she saw them twice a year. According to Ms Tarrant, to a significant degree this visiting did not occur.
78 Ms Tarrant then commenced another relationship with a drug dealer who provided all the drugs she needed. A sixth child was removed by DOCS shortly after birth, an event Ms Tarrant described to Ms Robilliard as devastating as she had been drug free from the moment she knew she was pregnant. Attempts to recover custody of this child by court process were unsuccessful and according to Ms Tarrant she then gave up and went back to drug using.
79 Ms Robilliard records that Ms Tarrant reported smoking cannabis at age 13 and 14 for about 6 months, that she then stopped and used no illegal drugs until she was about 16 and began using amphetamines occasionally. With some inconsistency, the pre-sentence report records that according to Ms Tarrant she began smoking marijuana and drinking alcohol at age 13 or 14, that she ceased marijuana use at age 16 not liking its effects and at that time she was introduced to amphetamines and began using intravenously from the start.
80 According to the pre-sentence report except on a sporadic basis, amphetamine use ceased after a year but Ms Tarrant then tried heroin and continued drinking alcohol. Both reports record that after her son's death she turned again to substance abuse, according to Ms Robilliard "as much and as often as possible" using "anything - alcohol, speed and heroin". This heroin use continued until at least 2001 apart from the period of her last pregnancy. She resumed amphetamine use in 2001 in response to lethargy apparently associated with ceasing the methadone program.
81 Ms Tarrant claims to have been drug free since entering custody and her claim in that regard is supported by Ms Ramsay. Ms Ramsay made similar complimentary remarks concerning Ms Tarrant as those recounted above in relation to Mrs Smit and gave a similar explanation of Ms Tarrant's motivation.
82 To the author of the pre-sentence report and Ms Robilliard, Ms Tarrant has maintained she is innocent of involvement in Mr Collins' death. To Ms Robilliard she has apparently asserted that she was not present when Mr Collins was murdered. Again, I am not persuaded that any remorse this offender has goes beyond consideration of herself.
83 There are some other matters to which I should refer. I have considered the terms of s21A of the Crimes (Sentencing Procedure) Act. I do not regard it as necessary to enumerate the factors mentioned in that section which I regard as relevant here although it is obvious from what I have said that a number are.
84 I record also that I have read Victim Impact Statements of Mr Denis Collins and Ms Deborah Collins, respectively the deceased's father and sister. Though the decision in R v Previtera (1997) 94 A Crim R 76 makes plain the limits to which a sentencing judge may put such statements, one cannot read them without having brought home both the loss which Mr Collins' death has caused and, if I may say so, the charity or maturity of Ms Collins. In deference to a hope Mr Collins expressed that I would "give these misfits the rest of their lives to think about what they did to Craig", I should however say this. Although the Crimes Act prescribes life imprisonment as a sentence which can be imposed for murder, the law of this State is that offences of murder are not all of the same gravity and a life sentence is to be imposed in only cases that fall within a "worst" category. I am obliged to follow, and the Prisoners are entitled to have followed, that law. And while no period of imprisonment can equal the loss Mr Collins suffered, deprivation of liberty for the periods involved in this and other cases of murder is calculated to have an impact on offenders' lives in terms of family, children, job prospects and the like from which it is unlikely they will ever fully recover.
85 (I note that s54A et seq of the Crimes (Sentencing Procedure) Act 1999, introduced by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002, and the effect of which seems to me to significantly increase the penalties in fact imposed for murder, are expressed not to apply to offences committed prior to 1 February 2003.)
86 One question which arises is whether any further significance, if any, is to be afforded to the prisoners' drug addictions or intoxication at the time of the attack on Mr Collins. I have already indicated that it bears on the issue of intent. It is proper to recognise that all 3 prisoners apparently took to drug taking in response to events over which they had no control and, in the case of Mrs Smit and Ms Tarrant, events what might fairly be described as great emotional trauma. On the other hand, the taking of drugs was initially a matter of choice and they have each had many years in which to appreciate in general terms where their addiction led them and to deal with it.
87 The topic of addiction was dealt with at some length in the decision of the Court of Criminal Appeal in R v Henry [1999] 46 NSWLR 346 albeit in a context different from that here. A number of the issues there raised are relevant here but I will confine my quotation to a few of the Chief Justice's remarks. His Honour observed:-
"The original decision to experiment with drugs .. in the usual case, is a completely free choice. The addictive quality of drugs, together with the anti-social behaviour which so commonly results from addiction, is so well known that persons who choose a course of addiction must be treated as choosing its consequences; and
.. individuals do emerge from addiction. They do so with difficulty and generally need significant amounts of help. The decision to persist with an addiction, rather than to seek assistance, is also a choice."
88 Although it seems to me that some recognition should be given to the fact that their drug taking commenced at ages when at least Mr Smit and Ms Tarrant were immature - see R v Henry at [273(c)(ii)] - to some extent the history of all three offenders is illustrative of the considerations to which the Chief Justice referred in the passage just cited. Since Mr Collins' death each of the prisoners has managed to become and remain drug-free. One may accept that custody and its incidents will undoubtedly have assisted in that regard but it is apparent that all three have been able to obtain access to drugs had they wished to do so. According to Ms Tarrant she also became drug free when she had the incentive of pregnancy to help her. Mrs Ramsay attributes the motivation Of Mrs Smit and Ms Tarrant to the shock of where they have ended up.
89 It can be little consolation to Mr Collins' family, or the community, that Mr Collins had to die for the 3 prisoners to become sufficiently motivated.
90 I should however record that there is no evidence that any one of the prisoners has previously been induced to an offence of violence in consequence of the ingestion of drugs or alcohol.
91 Before I turn to the sentences which should be imposed it may be appropriate to reflect on principles to be applied. In doing so, I may be permitted to quote from remarks I made, with the concurrence of other members of the Court of Criminal Appeal in R v Kilmore (unreported, CCA, 13 August 1998). (Coincidentally the offender in that case was also substantially affected by drugs, viz. rohypnol tablets, and alcohol.):-
"The authorities dictate that "there ought to be a reasonable proportionality between a sentence and circumstances of the crime...and it is always important in seeking to determine the sentence appropriate to a particular crime, to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration, in order to arrive at the proper sentence to be imposed, cannot properly be given their place." R v Dodd (1991) 57 A Crim R 349 at 354. One must recognise also the purposes of criminal punishment - "protection of society, deterrence of the offender and of others who might be attempted to offend, retribution and reform." - Veen v R (No.2) (1987) 164 CLR 465 at 476; see also R v Purdey (1992) 65 A Crim R 441 at 444-5. In the case of the offence of murder, the starting point for a consideration of the appropriate penalty remains the fact that the offence involves the felonious taking of a human life R v Low (1991) 57 A Crim R 8 at 18-19.