R v White

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

Thursday 22 June 2000 L15/97 APPLICATION OF DAVID WHITE

1 HIS HONOUR: On 7 March 1990 the jury found the applicant, David Timothy White, guilty of the murder of Jean Smithson. The applicant was also found guilty of an offence under s 61D(1) of the Crimes Act, that is of having sexual intercourse without consent knowing that consent was lacking. On 9 July 1990 I sentenced the applicant to penal servitude for life for the crime of murder and I imposed a concurrent sentence of a fixed term of six years in respect of the sexual assault. Both sentences were backdated to commence on 9 January 1990. 2 The applicant made application in writing on 12 September 1997 for the determination pursuant to s 13A of the Sentencing Act of a minimum term and an additional term of the sentence of penal servitude for life that I had earlier imposed. When the applicant lodged the application, s 13A(3) provided that a person was not eligible to make an application of this nature before he had served "at least eight years of the sentence concerned…" If the letter of application is to be regarded as the making of the application, then the applicant's application was premature. There was, however, a later application signed by the applicant bearing date 9 September 1999. This application bears a receipt stamp of this court that evidences that the document was received in the court on 17 September 1999. It seems to me that this is the application which should be treated as the application before the Court and it was properly lodged after the expiration of the first eight years of the applicant's sentence. In any event no point has been taken that the making of the application was premature. In the circumstances, it is unnecessary to decide whether, for present purposes, the application is made when a letter of request is directed to the Supreme Court or when an application is heard by this Court. 3 The matter did not come before me for hearing of the application concerning the existing life sentence until 5 May 2000. On that date the issue arose as to whether the application was to be dealt with under s 13A of the Sentencing Act 1989, which, of course, was repealed by the Crimes Legislation Amendment (Sentencing) Act 1999 or whether the application was to be considered under Schedule 1 to the Crimes (Sentencing Procedure) Act 1999. Counsel were invited to prepare written submissions as to the appropriate regime, Mr Austin having submitted that the 1989 statute prevailed. However, Mr Austin did not pursue that submission and presented no written submissions to support it. 4 In my opinion it is clear that this application is governed by the Crimes (Sentencing Procedure) Act 1999. Clause 21(1) under Schedule 2 Part 2 Division 4 provides: "Any application under s 13A of the 1999 Act that had been made, but not determined, before the appointed date is to be determined in accordance with Schedule 1 to this Act." 5 The "appointed date" is defined as the day upon which Part 4 of the Act commenced, and that date was 3 April 2000. 6 At the outset it is appropriate that I have regard to the circumstances of the offence for which I imposed the life sentence upon the applicant: (see Schedule 1 Clause 3(1)(a)). 7 This was, as I observed when passing sentence on 9 July 1990, a very savage murder. I draw on my sentencing remarks to record once more the grave objective features of this crime: "The victim, Jean Smithson, then fifty-three years of age, was on the night of 15 December 1988 at her residence, being a ground floor unit at 7 Georges River Road, Ruse when the prisoner entered the unit and attacked her in a particularly fierce way. The evidence of Dr Oettle, who performed the post mortem examination, revealed that the prisoner used a knife to inflict many stab wounds. One of the wounds showed that the knife had passed through the right eye into the orbital plate above it and into the substance of the brain. There were a series of sixteen stab wounds along the front of the neck and there was penetration of the major carotid artery. On average these wounds were some ten millimetres long. The victim also sustained extensive bruising to the head and a fractured skull, the latter injury having been caused by the prisoner's use of a length of wood. Dr Oettle said, and I accept, that the fracture of the skull and a laceration of the back and the side of the skull were 'consistent with gross force being applied to the side of the head.' Dr Oettle also considered, and I accept, that a considerable degree of force was used in causing the knife wounds 'because of the penetration of a bone of the skull', referring to the orbital plate, 'and penetration of the superficial vertebra of the neck.' Understandably, this violent attack caused the victim's death. Not content with this murderous attack the prisoner used the victim as an object for his sexual gratification. When eventually the deceased's body was found lying in her bedroom she was found semi-naked, attired only in clothing that had been pulled over her chest and neck. Vaginal swabs were taken and subsequent DNA testing of semen taken from the body of the deceased matched the prisoner's semen and established that the semen came from the prisoner. Whilst the prisoner denied making the admissions upon which the Crown in part relied, the jury obviously accepted, and I accept, that the prisoner told the police following his arrest that after he had bashed this victim about the head and before he stabbed her he had intercourse with her. The evidence establishes that the blows about the head, themselves sufficient to cause death, would have rendered the deceased unconscious but Dr Oettle's evidence also establishes that the deceased was still alive when she was later stabbed. The deceased was not known to the prisoner before the occurrence of the horrible events I have outlined. The prisoner simply invaded Mrs Smithson's home and set about the commission of these brutal and callous attacks." 8 The applicant, up to the time he was sentenced, was denying he had committed this murder, so there was no element of contrition to be taken into account in his favour. There was evidence that the applicant had been drinking before the offence but I determined that the evidence did not persuade me at the time of sentencing that the applicant was significantly affected by alcohol when these crimes were committed. 9 In weighing the subjective features of this case, I must be aware of those principles expressed by Wood J in R v Fernando (1992) 76 A Crim R 58, in particular at pp 62-63, and be alert to their possible application. The applicant was born on 4 February 1971 so that he was only seventeen years of age when he committed the crime of murder. He is an Aboriginal person who comes from an unsettled and under-privileged background. He is one of six children and spent the initial years of his childhood at a mission settlement in New South Wales. After his parents separated in 1976 and his mother remarried, the applicant's family went to Sydney to live in 1978 or 1979 and it would seem that behavioural problems were experienced in relation to the applicant from that time on. The applicant did not enjoy a close relationship with his mother or his stepfather and lived for much of his formative years with other relatives. 10 At the trial of the applicant the issue of diminished responsibility was raised but the jury rejected it. Evidence was placed before the court concerning psychiatric assessments that had been made by Dr Dent and by Dr Shand. 11 Dr Dent assessed the applicant in February 1990. His analysis was that the applicant had a very low IQ and that that constituted abnormality of mind resulting from retarded development, but the doctor's opinion was challenged upon the basis that his assessment of the applicant's IQ was dependent upon the genuineness of the applicant's responses on interview. Whether the applicant's responses had been genuine was very much in issue at the trial. 12 Dr Shand expressed a view not dissimilar to that of Dr Dent if the applicant's responses on interview could be taken at face value, but he questioned whether those responses could be accepted, noting a significant difference between his assessment of the cognitive IQ of the applicant and his verbal IQ. 13 What the applicant said to Dr Dent and to Dr Shand about his innocence of the crime differed from answers that had been given by the applicant to the police when he had been interviewed concerning the death of the deceased. To the police the applicant had admitted having struck the deceased over the head with a piece of wood, having had intercourse with her whilst she was unconscious on the floor, and having stabbed her a number of times. By way of contrast, the applicant when interviewed by Dr Dent, denied any involvement in the murder of the deceased and he made the like denial to Dr Shand. Since the jury rejected the applicant's contention that the answers attributed to him in the recorded interview with the police were fabricated, it follows that they were unable to accept the responses which the applicant gave to the doctors, and hence the basis of the defence of diminished responsibility was not established. 14 It does not necessarily follow that the failure of the defence of diminished responsibility means that the Court should disregard the evidence of the psychiatrists which was given at the trial, but because its significance was so plainly dependent upon the reliability of the applicant's responses to those doctors, I do not find I am really assisted by the evidence of Dr Dent or by the evidence of Dr Shand in my present task. Neither doctor has made any recent assessment and Mr Austin has not in his submissions placed any reliance upon the evidence of those psychiatrists. No doubt Mr Austin was mindful of the matters to which I have referred in addressing the evidence of the psychiatrists, and of the earlier analysis to the like effect by Gleeson CJ in the judgment delivered on 15 November 1991 when the Court of Criminal Appeal dismissed the applicant's appeal following his conviction and sentence. 15 I do not overlook psychological appraisals by Dr Bashir and Dr Gilandis in 1990, which placed the applicant towards the lower end of the average range and in a report from Ms Robilliard, relied upon on this application, and to which I shall presently refer, there is reference to those earlier psychological appraisals. I accept the conclusions of these experts as summarised in Ms Robilliard's report in the extract which I will later record. 16 The Court is required to have regard to all offences of which the applicant has been convicted: (see Schedule 1 Clause 3(1)(b)). When I sentenced the applicant in July 1990 I remarked that the applicant had a number of appearances before the Children's Court on minor matters, which I do not treat as being of any relevance in my present task. However, there are other matters now recorded against the applicant. On 12 February 1990 the applicant was sentenced to concurrent sentences of six months on offences of stealing and assault occasioning actual bodily harm, with the sentences to commence on 12 February 1990 and to expire on 11 August 1990. Then on 3 December 1992 the applicant was sentenced to two months imprisonment for assaulting a prison officer, with the sentence to commence on 3 December 1992 and to expire on 2 February 1993. On 30 June 1994 the applicant was sentenced to a further term of two months imprisonment for malicious damage, with that sentence to commence on 30 June 1994 and to expire on 29 August 1994. On 30 September 1994 the applicant was sentenced to eighteen months imprisonment for an attempt to escape lawful custody, with that sentence to commence on 30 September 1994 and to expire on 29 March 1996. On 12 August 1999 the applicant was sentenced to six months imprisonment for assault, with the sentence to commence on 12 August 1999 and to expire on 11 February 2000. 17 A period in excess of ten years has now elapsed since the commencing date of the two sentences which I imposed in July 1990. However, it is to be observed from the above details of the applicant's criminal history that for much of the time that has passed since January 1990 the applicant has been serving sentences for offences other than the crime of murder. Apart from the sexual offence for which I sentenced the applicant, the other sentences since the beginning of January 1990 attracted sentences which aggregate thirty-four months. 18 It follows that relatively little of the time that the applicant has spent in prison since January 1990 has been referable exclusively to the commission of the crime of murder. I must, however, have regard to the principle of totality should I determine that it is appropriate to accede to this application to set a specified term. 19 It is clear from the applicant's criminal record, which I have reviewed, that the applicant's conduct over the past ten and a half years has been by no means blameless. I have had the advantage of considering reports from the Serious Offenders' Review Council dated 14 April 1998 and the two subsequent reports in April 2000. In March 1998 the SORC reported that the applicant had "had numerous behavioural problems whilst in custody". One of these problems was the attempt to escape from custody when he was at the Lithgow Local Court on 1 July 1994. That event was the incident that attracted the eighteen months sentence referred to above. 20 I do not propose to record the detail of the applicant's various transgressions since he has been in custody. They are in the main scheduled in the material contained in Exhibit E. In the course of submissions Mr Austin complained of the difficulty in dealing with and answering the circumstances of the various unfavourable incidents the subject of reports against the applicant. Whether it be difficult or not, the applicant gave no evidence on the application presently before this Court, and it seems to me that I should accept the material that has been presented by way of report from the Serious Offenders' Review Council. 21 There have, however, been some advances made by the applicant whilst he has been in prison. He has participated in a number of courses and various certificates, which I take into account in his favour comprise Exhibit C. The applicant is presently doing a Welfare Certificate Course and he has improved his literacy skills. 22 Mr Austin tendered a report from Ms Robilliard who assessed the applicant at Lithgow Gaol in December 1999 and whose report is dated 30 March 2000. The assessment of Ms Robilliard compares very favourably with those conducted in 1990: "At our meeting David tested as of Sound Average intellectual ability. When tested by Drs Bashir and Gilandas in 1990, there was almost a 30 point difference between his verbal and non verbal scores which they opined was due to 'gross educational and social deprivation since before school age'. Nonetheless, his overall score achieved in 1990 still placed David around the lower end of Average range. On present testing the enormous discrepancy between his verbal and non verbal scores is no longer in evidence. His verbal ability is now much improved and there is an apparent diminution in his performance scores. There would of course be no real diminution in his non verbal ability counting out such intervening events as head trauma or severe mood disturbance, neither of which are reported or evidenced. The difference therefore, is probably due to the different tests actually employed on the two occasions and other external variables. In summary, David is measured as of Average intellectual ability. He has made significant efforts to improve his education over the years of his imprisonment. In the early years, when David was at Goulburn Gaol, one of his cousins apparently helped him to learn to read. As a measure of his improvement David commenced a Welfare Certificate Course in 1996 and is now half way through. He and four or five others are undertaking the course and a teacher visits them once [per] week. David said he finds it hard, however, he has ideas of ultimately working with troubled young people hence his motivation to continue." 23 Having considered Dr Dent's psychiatric assessment in 1990, it was Ms Robilliard's opinion that the applicant "has progressed and developed significantly over the last decade". Whilst, for the reasons earlier expressed, I have not found Dr Dent's assessment in 1990 to be helpful, I am nevertheless prepared to accept Ms Robilliard's opinion as to the applicant's progress in the last ten years. Ms Robilliard concluded her report: "In summary it seems David has improved himself and developed his potential in many areas over the years of his imprisonment. His bright and communicative presentation and behaviour at our meeting is in contrast to how he was described by experts who interviewed and assessed him at the beginning of his sentence. He has availed himself of educational opportunities and resources available, can read and write and is part way through a Welfare Worker Certificate Course. His self confidence seems positive and he is now able to accept positions of responsibility within his community. As reported above the client continues to maintain his position with regard to the original offence. Interestingly he told me that he is quite aware that if he did admit guilt it would probably be viewed more favourably by those making decisions regarding his future. While adherence to his position may be a demonstration of total denial, he is aware that it is probably disadvantaging him yet he remains resolute." 24 The applicant has a long way to go in his rehabilitation. That the applicant has continued to deny his guilt for this murder and hence that he has expressed no contrition for it are matters of some concern, but I am nevertheless persuaded that I should accede to this application. Having considered all the evidence placed before the Court on this application, I have decided that I should set a specified term for the sentence together with a non parole period. In doing so, I have regard to the applicant's age both at the time this murder was committed and at the present time. The applicant is now twenty-nine years of age. 25 Whilst I am going to set a specified term, it must be a term which, whilst taking into account the various subjective features, also recognises the extreme seriousness of the objective features of this crime. I must have regard to considerations of deterrence and retribution, and the protection of the community. 26 Since 1990 the applicant has been mainly in the correctional centres at Lithgow and Goulburn. He has been in trouble in both centres. The Serious Offenders' Review Council reported in March 1998 that should the applicant's life sentence be determined, the Council would encourage the applicant's participation in programmes, particularly in violence prevention and in relation to sexual offences. The sentence I intend to structure to punish this crime of murder will afford ample opportunity for this strategy to be implemented. 27 Clause 5(3) of Schedule 1 to the Act provides: "The term of the sentence, and any non-parole period, are to be taken to have been set under section 44, but are not required to comply with the other provisions of Division 1 of Part 4." 28 Does the inclusion of the word "other" in Clause 5(3) mean that s 44(2) is attracted to my present sentencing task? 29 Section 44(2) of the Crimes (Sentencing Procedure) Act 1999 requires that a non parole period for a sentence "must be not less than three-quarters of the term of the sentence, unless the Court decides there are special circumstances for it being less." 30 Under the 1989 Sentencing Act there was no requirement on an application under s 13A to structure a sentence as required by s 5 of that Act (the counterpart of s 44 of the present Act). However, this was because s 13A(7) specifically provided that a minimum term and an additional term set under s 13A "are not required to comply with the other provisions of this Part." The "other provisions" included s 5 of the Sentencing Act. 31 When one looks at Schedule 1 clause 4 to the 1999 statute, one of the options that the Court has on an application in relation to an existing life sentence is to decline to set a specified term for the sentence but yet to set a non parole period. This does not in my opinion fit comfortably with a construction of cl 5(3) such as would require the Court if fixing a non parole period to fix a period "not less than three-quarters of the term", absent special circumstances. 32 My reading of the Second Reading Speech for the Crimes (Sentencing Procedure) Act 1999 does not disclose any explanation as to why Parliament would have intended to alter the position from that which prevailed under the 1989 Sentencing Act where the Court could structure a sentence unrestricted by s 5 of that Act. 33 There has been no argument in this case addressed to how cl 5(3) should be construed, and on the view I take of this application it is unnecessary to decide whether s 44(2) has any application. I am prepared to assume, without deciding, that s 44(2) does not fetter the approach that I take to my present task, but I consider that in this case I ought to set a non parole period which happens to be three-quarters of the specified term. In my opinion the applicant should not become eligible for parole any earlier than the date I am about to fix, and whilst the applicant will require an extended period of supervision when eventually he is released on parole, the full term of the sentence I otherwise regard as appropriate to this particular crime will afford adequate opportunity to address such requirement. 34 Before determining what I consider to be an appropriate specified term, I have had regard to sentences in other cases. I do not propose to record here the detail of my review. Ultimately of course a sentence has to be determined that is appropriate to the particular case and no two cases are the same. One of the cases I considered was that of R v Fuller (unreported, NSWCCA, 7 November 1994). The appellant in that case had been sentenced for the crime of murder under the Sentencing Act 1989 and the total sentence was one of twenty-one years four months, comprising a minimum term of sixteen years and an additional term of five years four months. The appeal against sentence was dismissed and the Court of Criminal Appeal rejected the submission that the circumstances of the case warranted a longer additional term than that which had been fixed. Those circumstances included the youth of the appellant when the sentence began and the long period of his custody. In Fuller the submission, rejected by the Court of Criminal Appeal, was that the case warranted a departure from the formula set by s 5(2) of the Sentencing Act, but the following observations of the members of the court nevertheless have some bearing here when I consider what is an appropriate non parole period. Hunt CJ at CL, having reviewed the circumstances said to warrant a longer than usual additional term, went on: "These [circumstances] it is submitted show that the applicant will need a lengthy period of supervision upon his release in order to assist him to be rehabilitated back into the community. It may be accepted, without evidence, that a lengthy period of supervision will be required for that purpose. But the application of the statutory formula to the total sentence imposed produces an additional term of five years four months. On the face of it, such a period is more than ample to assist the applicant to be rehabilitated into the community…" 35 Smart J observed: "With longer sentences it is frequently the case that an additional term which is longer than the usual one envisaged by the statute cannot be supported." (And, of course, his Honour was referring to s 5(2) of the Sentencing Act 1989.) 36 As I have said, I am approaching my present task on the assumption that I am unfettered by s 44(2) of the Crimes (Sentencing Procedure) Act and I have carefully weighed the circumstance that the applicant is going to need supervision for a considerable period once he is admitted on parole. Nevertheless in all the circumstances I consider it to be appropriate that I should set a non parole period here which happens to be three-quarters of the specified term. 37 I have concluded in all the circumstances of this case that I should set a specified term of twenty-two years imprisonment and a non-parole period of sixteen years and six months, the latter period being the minimum term which the applicant must be kept in detention for the offence of murder. The specified term is to be taken as backdated to 9 January 1990. 38 Accordingly I pass sentence as follows: I set a specified term of twenty-two years imprisonment to date from 9 January 1990 and to expire on 8 January 2012. I fix a non parole period of sixteen years six months to date from 9 January 1990 and to expire on 8 July 2006. I therefore specify 9 July 2006 as the earliest date upon which the applicant will become eligible for release on parole. **********

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