R v White

LEGISLATION CITED : Crimes (Sentencing Procedure) Act

Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act, 1999 (No. 1 of 2002) (2002) 56 NSWLR 146 R v Berg [2004] NSWCCA 300 R v Deurocher-Yvon [2003] NSWCCA 299 R v Fernando (1992) 76 A Crim R 58 R v King [2004] NSWCCA 444 CASES CITED : R v Mostyn [2004] NSWCCA 97 R v Pellew [2004] NSWCCA 434 R v Previtera (1997) 94 A Crim R 76 R v Totten [2003] NSWCCA 207 R v Way (2004) 60 NSWLR 168

PARTIES : Regina v Clarence Herman White

M. Cunneen (Crown) COUNSEL : S. Hanley (Accused)

Office of the Director of Public Prosecutions (Crown) SOLICITORS : Sydney Regional Aboriginal Corporation Legal Service (Accused)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

SENTENCE 1 HIS HONOUR: Clarence White, and I will refer to him throughout these remarks as the offender, pleaded not guilty upon the presentation of an indictment charging him with the murder of Phyllis Jean King at Katoomba on 29 August 2003. That plea was entered on 14 February 2005 and immediately thereafter an argument took place concerning the admissibility of DNA evidence. DNA evidence was obtained following the discard of a cigarette butt by the offender. On the prosecution case, material was found on the fingernails of the deceased permitting a DNA profile to be obtained and that matched the offender's profile taken following the discard of the cigarette butt. On 15 February 2005 it was held that the relevant DNA evidence was admissible, and after this ruling had been given the offender changed his plea to one of guilty of murder. 2 The deceased was an elderly widow aged eighty-two years. The deceased lived at her home at 58 Merriwa Street, Katoomba. A daughter, her husband and their three children lived there with her. The body of the deceased was found by her grandchildren, her daughter and her son-in-law at about 4.45 pm on Friday, 29 August 2003 when they returned from Jindabyne. Medical evidence indicates that the deceased died earlier on that same day. 3 The body of the deceased was found in the hallway of her home. There was a garment tied around her head, covering her mouth and her nostrils. A further garment was tied around her wrists and the legs of the deceased were tied together with black cable above the ankles. 4 The post mortem examination was conducted by Dr Langlois on 30 August 2003. Dr Langlois had earlier attended the deceased's home, where he observed the body of the deceased lying on the floor in the hallway. Dr Langlois described the position of the body (T 4, 22 April 2005) as "lying on the floor with [the] head almost on the skirting - in fact pressing against the skirting board where there was a doorway, so one had the door frame very near her and the skirting board and the head was pressed against that, with her lying with the right side on the ground and the head pressed against that." 5 There were a number of injuries to the head:

(i) There was head injury on the scalp just inside the hairline on the left side of the head. The skin was split and the skull underneath it was exposed with a very fine linear line on it. The laceration extended over 4-6 cms.

(ii) There was a second area of injury that included a fracture of the left side of the nose and a small fracture running across the base of the skull from the roof of the orbit of the left eye and there was associated bruising on the left side of the nose and in the tissue beneath the eyebrow.

(iii) There was evidence of brain injury, with blood over the surface of the brain and a very small area of bruising towards the temporal area.

(iv) There was a further injury on the back of the head on the right side, in the nature of grazing with underlying bruising.

(v) Dr Langlois also found bruising of the left breast and bruising of the right wrist.

(vi) There was also a laceration of the right hand ring finger which Dr Langlois considered was consistent with having been caused by a ring having been pulled from the finger. 6 Professor Ansford, a Queensland pathologist, was consulted on behalf of the offender and his report was tendered as Exhibit G. Professor Ansford was not called to give evidence but Dr Langlois had discussions with Professor Ansford concerning the various injuries and their significance and Dr Langlois provided this Court with the benefit of an account of the expert discussions. 7 Dr Langlois was of the opinion that there had been at least two, and possibly three, blows to the deceased's head. Professor Ansford considered that all of the injuries to the nose, eye socket and the front of the head were caused by a single application of force. Dr Langlois considered this to be possible, and I cannot exclude this as a reasonable possibility. It may be that the deceased sustained the frontal head injuries when she fell. As to the cause of death, Dr Langlois did not consider that the injuries to the head would have been sufficiently serious to cause death but he would have expected those injuries to have produced unconsciousness. There was also evidence of asphyxia, and Dr Langlois considered death to be due to the combined effects of the head injury and asphyxia. 8 Dr Langlois in cross examination indicated that there was general agreement between himself and Professor Ansford about this matter. The deceased had a potentially weak heart with pre-existing ischaemic heart disease. He said, and I quote: "The heart disease is pre-existing and the event that has occurred to precipitate death is a head injury and the application of the gag." 9 I am satisfied, having considered the evidence of the pathologists, that death here was caused by the combination of the trauma to the head causing unconsciousness and asphyxia due to the application of the gag, a gag that became tighter with moisture. 10 The offender gave evidence in the proceedings on sentence. He said that at the time he committed this crime he was a drug user and his partner had a drug problem also. They were staying with friends who lived some 700 metres from the deceased's home. The offender quarrelled with his de facto about shortage of funds and went out intending to steal some valuables. It was with this intention that he entered the home of the deceased. Having done so, he entered the master bedroom where he found some jewellery. He heard the deceased speaking on the phone. The offender said that when the deceased came out into the hallway, the offender hit her in the back of her head with his elbow and he said they both fell down. The deceased hit the wall in doing so and thereafter appeared to be unconscious. The offender took the aerial from the television set and tied the deceased's hands and feet. He said he also took a jumper from the washing basket and tied it around the mouth of the deceased. Then he went off to continue his search for valuables. He came back to the deceased and saw that there was a ring on her finger. He put some of his saliva around the finger to make it easier to remove the ring. He took the ring and left the house. He was asked this question and gave this answer: "Q. When you left she was tied up, lying on the floor? A. Yeah, I thought that someone might be coming, but I knew if I left her tied up too long she would die but I thought someone was coming up." 11 I proceed for sentencing purposes upon the basis that the offender did strike the deceased from behind with his elbow causing her to fall to the floor, and that the frontal head injuries were sustained by the deceased in consequence of that fall. However, altogether this was an extremely cowardly and callous attack on an elderly lady, and the offender left her bound and helpless on the floor with an admitted appreciation that if his victim was left tied up for too long she would die. Tragically, that is precisely what happened. 12 He contended that he was too intoxicated to think of ringing 000 to make sure that the deceased was rescued. I do not accept this. The offender asserted in his evidence a clear recollection of what he did inside the house, and to leave the deceased in the way in which he did discloses that the offender was indifferent to her fate. The offender made a conscious decision to leave the deceased bound and gagged on the floor believing she would die unless released, and the evidence did not support a belief that help was at hand. I do not accept that the offender held any such belief. 13 It is not contended by the Crown that the offender acted with intent to kill or with intent to cause grievous bodily harm but rather that the offender acted with reckless indifference to human life. This he did, being concerned only to take away the deceased's possessions, including the ring he had removed from her finger as she lay helpless on the floor. 14 The offender was born on 19 June 1969 so that he is presently thirty-six years of age. He has a lengthy criminal history with many offences of dishonesty. The offender first came into contact with the Probation and Parole Service in June 1987 concerning offences of maliciously inflicting harm with intent to have sexual intercourse and indecent assault. At that time, his response to parole and probation supervision was considered to be unsatisfactory, leading to revocation of parole. 15 The Probation and Parole Service report dated 27 May 2005 discloses that the offender came from a disadvantaged background and that his parents separated when he was very young. He himself has had a number of de facto relationships and very little adult employment. The author of the report considers that little benefit from supervision by the Service could be expected having regard to prior experiences. In short, the Probation and Parole Service pre sentence report is unfavourable to this offender. 16 In his evidence, the offender said that his parents separated when he was five years of age and his mother remarried. The offender had schooling in Moree until the start of year 10. He had reading difficulties and problems with arithmetic. He said he became an alcoholic when he was young, and that his stepfather was violent towards him. He said that he began to use heroin at the age of fifteen, and at the time of giving evidence in April last the offender was on a methadone programme. 17 The offender said that he had had about fifteen relationships and eleven children by those relationships, but he sees none of the children. His partner at the time of his arrest has not kept in touch with him since the commission of this crime. 18 The offender said that he did some Aboriginal dancing but that he has been on the dole since 1997. He did work picking cotton for a time - he told this Court it was for period of two years, although he told Dr Nielssen it was for a period of six months. However, otherwise he does not seem to have pursued gainful employment. 19 The offender said that because of the nature of the crime he had committed he has experienced threats since he has been in custody and that he is in protection. He has no visits from any members of his family and he is allowed to exercise for only half an hour per day. 20 I note in relation to the circumstances of the offender's incarceration that it cannot be assumed that this offender will in the future be deprived of access to privileges: see R v Totten [2003] NSWCCA 207; R v Deurocher-Yvon [2003] NSWCCA 299; R v Mostyn [2004] NSWCCA 97; and R v Pellew [2004] NSWCCA 434. 21 The offender was assessed by Dr Nielssen, and his report of 8 April 2005 is based on interviews he had with the offender on 5 January 2005 and 17 March 2005. 22 Dr Nielssen considered it unlikely that the offender had a major mental illness or that he was mentally ill at the time that he committed this crime. Dr Nielssen concluded his report with the following summary and opinion: "Mr White is a thirty four year old man brought up in a large unstable family. He was exposed to physical abuse by a stepfather after his parents separated and reported abuse of a range of drugs from late childhood. His circumstances and drug use affected his participation in education and he is unable to read effectively despite remedial education and schooling in boy's homes. Mr White reported that he had been assessed to have 'the mind of an eight year old' and also that he was unable to read properly. However, his low level of general knowledge and poor literacy were assessed to be largely due to his disrupted education and extremely deprived upbringing, and his overall intellectual performance was assessed to be within the normal range. Mr White reported symptoms of psychotic illness after a period of heavy amphetamine use, but the symptoms abated without treatment and he reported that he recognised that the symptoms were due to drug use. He did not report typical symptoms of psychotic illness, a typical pattern of treatment and social disability and there were no objective features of schizophrenia at the time of either interview. It was not clear why Mr White was receiving treatment with antipsychotic medication. From the history elicited, the findings on examination or the documents provided it seemed unlikely that Mr White has a major mental illness or that he was mentally ill around the time of the offences. Mr White reported that the offence was committed at a time that he had not slept as a result of taking amphetamine the day before and was affected by sedative medication. He maintained that Mrs O'Brian's death was unintentional and the result of a gag applied to stop her from crying out. Mr White's offence appears to be the consequence of an antisocial lifestyle associated with drug dependence and abuse. His offences appear to be due to the need to obtain money for drugs and impaired mental performance arising from the abuse of drugs. The main component of rehabilitation would be long term drug counselling." 23 Pursuant to Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act, 1999, I have been asked to take into account five scheduled offences, four of which I observe were committed after the murder of the deceased:

(i) break enter and steal from a dwelling committed on 8 December 2003, the items stolen including jewellery, electrical items, a mobile phone and DVDs;

(ii) break enter and steal, again from a dwelling, the items stolen including jewellery and communications equipment, the offence date being 18 September 2003;

(iii) break and enter with intent to steal from a dwelling in May 2003;

(iv) attempt to break and enter a dwelling with intent on 16 October 2003 when the offender was disturbed in the process of trying to jemmy open a rear window;

(v) enter a dwelling with intent, being the same dwelling as that the subject of the offence (iv). The last mentioned offence was on 7 November 2003. 24 In the circumstances, I consider it appropriate to take these five scheduled matters into account. In doing so, I remind myself of the principles to be found in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) (2002) 56 NSWLR 146 as to the manner in which they are to be taken into account. 25 Victim impact statements were tendered in this case. They came from four of the deceased's children, and evidence the very special place the deceased had in the lives of her children, her grandchildren and her great grandchildren. These statements afford eloquent evidence of the value of the life of the deceased and the grief her death has occasioned to all her loved ones. It is appropriate that the loss and its consequences for the family of the deceased and the community is here acknowledged. However, I must heed the relevant provisions of the Crimes (Sentencing Procedure) Act and the decisions in Previtera (1997) 94 A Crim R 76, Berg [2004] NSWCCA 300 at [43] and King [2004] NSWCCA 444 at [171], and approach my sentencing task objectively and dispassionately. It is not appropriate, following the authorities mentioned, that I take those victim impact statements into account in determining upon an appropriate sentence. 26 Having regard to the date of the commission of the murder charged, Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act applies, and I must heed what was said about the new sentencing regime in R v Way (2004) 60 NSWLR 168. 27 The relevant provisions of Pt 4 Div 1A are ss 54A and 54B, which provide: "54A What is the standard non-parole period? (1) For the purposes of this Division, the standard non-parole period for an offence is the non-parole period set out opposite the offence in the Table to this Division. (2) For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences in the Table to this Division. 54B Sentencing procedure (1) This section applies when a court imposes a sentence of imprisonment for an offence set out in the Table to this Division. (2) When determining the sentence for the offence, the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period. (3) The reasons for which the court may set a non-parole period that is longer or shorter than the standard non-parole period are only those referred to in section 21A. (4) The court must make a record of its reasons for increasing or reducing the standard non-parole period. The court must identify in the record of its reasons each factor that it took into account. (5) The failure of a court to comply with this section does not invalidate the sentence." 28 Section 54D excludes from the operation of Pt 4 Div 1A sentencing of an offender to imprisonment for life but, subject to that, the Table provides for a standard non parole period of twenty years for the crime of murder, subject to excepted classes of victims, to none of which the deceased here belonged. Whilst this was a most serious crime, I accept Mr Hanley's submission that it was not a crime for which a sentence of life imprisonment should be imposed. Indeed, the Crown did not submit that such a sentence would be appropriate. 29 What then is the significance of the standard non parole period in the present case? 30 Because the offender pleaded guilty to the crime of murder, the standard non parole period to which ss 54A and 54B are directed does not apply: see R v Way (supra) at para 71. It was determined in Way that "the periods specified in the Table should be understood as having been specified for sentences imposed for mid range offences after conviction at trial." 31 It does not follow, however, that the standard non parole period has no relevance in a case where, as here, the offender has pleaded guilty. That standard still provides a reference point or guidepost to assist in determining the appropriate sentence: see Way at para 122 and Pellew (supra) at para 13(vii). 32 What then is an offence of murder in the middle range of objective seriousness, to which the standard non parole period relates? 33 There is no statutory definition to assist in determining this. Whilst all murders are, of course, to be regarded as extremely serious, the range of circumstances which may bear upon the objective gravity of this category of crime is widely variable. 34 I find it extremely difficult to determine where the boundaries of the middle range of objective seriousness of the crime of murder are to be set, but proper consideration of the significance of s 54A and s 54B requires that I endeavour to assess where the offender's crime would lie in relation to the middle of the range, heeding what was said in Way, particularly at paras 72-102. How else can I use the middle of the range as a guidepost as I endeavour to arrive at an appropriate sentence? 35 Section 54B(2) requires the Court to set the standard non parole sentence in a case to which the section applies "unless the court determines that there are reasons for setting a non parole period that is longer or shorter" than that standard period. 36 It was determined in Way (see para 118) that whether there are reasons for departing from the standard period will depend upon consideration of: "(i) the objective seriousness of the offence, considered in the light of the facts, which relate directly to its commission, including those which may explain why it was committed, so as to determine whether it answers the description of one that falls into the mid range of seriousness for an offence of the relevant kind; (ii) the circumstances of aggravation, and of mitigation, which are present in the subject case, or which apply to the particular offender, as listed in s 21A(2) and (3), and as incorporated by the general provisions in s 21A(1)(c) and by the concluding sentence to s 21A(1)." 37 I do not propose to repeat exhaustively those objective and subjective circumstances of this case which I addressed earlier, but plainly I must consider, and I have considered, the checklist of aggravating factors in s 21A(2) of the Crimes (Sentencing Procedure) Act, the checklist of mitigating factors in s 21A(3), and all the objective and subjective factors that affect the relative seriousness of the offence, as required by s 21A(1)(c). 38 Considering s 21A(2),

(i) as to (b), the offence of course involved the application of violence, although not the use of a weapon;

(ii) as to (d), the offender has a lengthy criminal record upon which I have previously remarked;

(iii) as to (g), the crime, of course, resulted in the death of the deceased but this is an essential element in the crime charged;

(iv) as to (j), the crime was committed at a time when the offender was on bail, as Mr Hanley acknowledged. The offender failed to appear at the Narrabri Local Court on 29 July 2003 in accordance with his bail undertaking. He was convicted of common assault, goods in custody and various driving offences, and the issue of warrants was then directed;

(v) as to (l), the victim of this crime was extremely vulnerable, having regard to her age. 39 Considering s 21A(3),

(i) as to (b), the murder was not planned. It was committed in the course of the other criminal activity identified;

(ii) as to (i), the offender gave evidence (T 20, 22 April 2005), that he was "devastated" and "very sorry" about what had happened, and that he felt for the deceased's family as well. I have no doubt that the offender regrets the death of the deceased because of the consequences of that death from his personal point of view, but I am prepared to accept, as he has asserted, that he now entertains some contrition. I do not overlook, however, that the offender was not deterred by what occurred on 29 August 2003 from proceeding with the later criminal activity identified in the schedule (para 23(i), (ii), (iv) and (v) above);

(iii) the offender's plea of guilty is, of course, to be taken into account in his favour. It is to be taken into account having regard to the timing of the plea. The utility value of the plea warrants some discount in the sentence otherwise to be imposed, and I propose to allow a discount of ten percent;

(iv) there are no other mitigating factors arising under s 21A(3), and I regard the offender's prospects of rehabilitation as poor. 40 The offender's underprivileged upbringing, and his early introduction to alcohol, and his later introduction to drugs, bearing in mind his aboriginality, enlivens consideration of the principles identified by Wood J (as he then was) in Fernando (1992) 76 A Crim R 58, and in particular at pp 62-63. I have regard in particular to the matters identified by Wood J in paras E-G. 41 In considering the Fernando principles in the context of the case of this offender, I am mindful of the conclusions expressed by Dr Nielssen and recorded earlier. The offender's abuse of alcohol and drug dependence is to be considered against his underprivileged background and the environmental circumstances associated with it. I take these matters into account, but, as I have earlier indicated, the offender's account of what occurred in the deceased's home is inconsistent with his claimed intoxication at the time this crime was committed. 42 I have regard to the purposes of sentencing, as expressed in s 3A of the Crimes (Sentencing Procedure) Act, and I record, for the purposes of s 5(1), that I am satisfied that in this case a lengthy term of imprisonment must necessarily be imposed to give effect to the purposes expressed in s 3A. 43 I have found the offender's prospects of rehabilitation to be poor, and I do not find special circumstances for the purpose of s 44(2) of the statute. 44 As I earlier observed, because of the offender's plea, the standard non parole period is to be regarded in the case of this offender only as a reference point. However, taking into account all the relevant features of this case and mindful as I am of the scheduled matters, I have concluded that but for the offender's plea attracting the discount I have indicated, this is a case in which it would have been appropriate to set what the legislature has defined to be the standard non parole period. 45 In my opinion, the appropriate non parole period for the sentence is eighteen years imprisonment and the appropriate balance of the term of imprisonment is six years. The sentence is to be backdated to commence on 11 December 2003, the date of the offender's arrest. 46 The offender is convicted of the crime of murder to which he pleaded guilty, and I now impose the following sentence. I sentence the offender to imprisonment for a non parole period of eighteen years to commence on 11 December 2003 and to expire on 10 December 2021, on which date the offender is to be eligible for release on parole. The parole period set is six years, to commence on 11 December 2021 and to expire on 10 December 2027. **********

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