R v Wills

R v Engert (1995) 84 A Crim R 67 R v Israil [2002] NSWCCA 255 CASES CITED : R v Lawrence [2005] NSWCCA 91 R v Scognamiglio (1991) 56 A Crim R 81 R v Wright (1997) 93 A Crim R 48

Crown: G. Lerve (11-21 October, 17 December 2004) B. Smith (18 February 2005) COUNSEL : M. Hobart (1 April 2005) Prisoner: M. Paish

Crown: Office of the Director of Public Prosecutions SOLICITORS : Prisoner: R.F. Berganin & Co.

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

SENTENCE 1 HIS HONOUR: Russell Clement Wills stood trial charged with the murder of Hans Hoch on 16 July 2002. The jury returned a verdict of guilty on 21 October 2004 and evidence and submissions on sentence were received on 17 December 2004. However, counsel for the prisoner sought and was granted an adjournment until 18 February 2005 in order to obtain a psychiatric assessment. On that date another adjournment was sought since the psychiatrist's report was not available and an adjournment was granted until 1 April 2005 when the report from Dr Nielssen was tendered (Exhibit 2) and Dr Nielssen was called to give evidence. 2 The deceased lived at Unit 21, Block B, Northcott Towers, Belvoir Street, Surry Hills. He was found dead on the floor of a bedroom in that unit on 17 July 2002. Dr Cala, who examined the body at 8.00 pm on that day, fixed the time of death as being at least twelve hours earlier and up to thirty hours previously. Indeed, it may well have been longer than thirty hours previously. The deceased was, by appearance, aged in his sixties, and he was of slight build. He weighed fifty-two kilograms and was 167 cm tall. 3 The post mortem examination later conducted by Dr Cala revealed extensive injury to the face and head, and lacerations, bruises and abrasions to the trunk, front and back, and to the arms and legs. Both ears were severely bruised. An internal examination revealed a fracture of the larynx and of the hyoid bone. There were a number of fractured ribs: the left 2nd-11th ribs laterally, and the right 2nd and 4th-12th ribs laterally. There was extensive haemorrhage surrounding those fractures. The deceased also had a tear in the left lobe of the liver. 4 In the opinion of Dr Cala, the deceased died from multiple injuries. The rib injuries were very severe and in all likelihood could have caused death, but the laryngeal fracturing was also very serious and injury in this area again could have caused death. Dr Cala considered further that there was a significant injury to the brain. 5 Dr Cala opined, and I find, that severe force was required to bring about the injuries to the ribs, such as multiple kicks or blows from a weapon. A cooking pot with a broken handle was found on the floor at the entrance to the bedroom and two utensils were located on the bed in the deceased's bedroom. Each of these utensils could have caused the fractures to the larynx, and Dr Cala considered each of the cooking implements could have caused the bruising found on the deceased, particularly the long-handled saucepan. The liver injury could have been attributable to a very forceful blow with a fist, or to a stomp or to a kick. I accept the evidence of Dr Cala above reviewed. 6 Clearly the deceased was subjected to a violent and sustained attack. I am satisfied beyond reasonable doubt that his assailant, found by the jury to be the prisoner, carried out that attack either intending to kill the deceased or at the very least to inflict grievous bodily harm. 7 The prisoner declined to be interviewed by police and he gave no evidence at his trial. For the subsequent sentence proceedings a pre-sentence report was obtained from the Probation and Parole Service, and when interviewed for that report the prisoner vehemently denied involvement in the killing. 8 The prosecution relied upon circumstantial evidence at the trial. Clothing taken from the prisoner, being a polo shirt and tracksuit pants, had human blood on them: the polo shirt on the left sleeve at the shoulder, and also on the neckline beside a buttonhole. There was a small area of blood in the left groin area of the tracksuit pants. DNA analysis revealed a profile consistent with that of the deceased, statistically to be found in less than one in ten billion people (Ms Neville, forensic biologist, T 239). 9 At the time of the commission of this crime the prisoner resided at Room 7, 493 Cleveland Street, Sydney. Another resident there gave evidence that at about two o'clock on 16 July 2002 he was doing some washing in the kitchen when the prisoner appeared, limping. He said he thought his leg was fractured and gave an account indicating that the injury was sustained when he went to the assistance of a young girl and was assailed by a number of men. Apart from the limp, Mr Brooks observed that the prisoner had a scratch around the head. 10 Leslie McKenzie, who also lived at 493 Cleveland Street, saw the prisoner walking with a limp on an occasion in July 2002 and when he asked the prisoner what happened, the prisoner responded, "Don't ask." 11 Detective Constable Wallace went to Room 7, 493 Cleveland Street on 18 July and found the prisoner in bed asleep. He arrested the accused and observed that as the prisoner dressed he was groaning and favouring his right leg. 12 Ambulance Officer Quinn attended Surry Hills Police Station that same day and saw the prisoner there. The prisoner was complaining about his left leg and pain in his upper thigh and into his groin. He claimed to have been having trouble with his left leg for three days and he winced as he entered the ambulance for the purpose of being taken to Sydney Hospital. 13 Dr Gregory saw the prisoner at Sydney Hospital and the prisoner presented complaining of a painful left thigh and of abdominal pain. He said the left thigh had been troublesome for some days and there was diffuse bruising there. He declined to give Dr Gregory any history to explain its presence. Analysis revealed a blood alcohol concentration of .173 and the prisoner complained to Dr Gregory of going into alcohol withdrawal. Notwithstanding the high reading, the prisoner claimed he had not had alcohol since the night before. 14 It is possible that the injuries to which the above evidence refers were sustained in a struggle with the deceased, but the evidence does not permit me to make a finding that this is so. It is possible that when the prisoner inflicted the injuries upon the deceased he was under the influence of intoxicating liquor, but again the evidence does not permit me to make a finding about the prisoner's state of sobriety when the crime was committed. 15 The Court has no evidence by way of explanation for the savage attack that caused the death of the deceased. 16 Objectively, this crime of murder must be viewed most seriously. The prisoner committed a savage and unexplained attack upon the deceased. That attack caused death and the attack was carried out with the intention of killing the deceased or at the very least with the intent of causing him grievous bodily harm. 17 This crime was committed prior to the amendment to s 44 of the Crimes (Sentencing Procedure) Act 1999 coming into force. Accordingly I am required to first set the term of the sentence, and secondly to set a non parole period pursuant to the earlier provision contained in s 44. The non parole period must be not less than three-quarters of the term of the sentence unless there are special circumstances for it being less. 18 In order to determine the appropriate sentence, I must have regard not only to the objective features of the case but also to subjective features, and I must take into account the matters addressed in s 21A of the Crimes (Sentencing Procedure) Act. 19 I have reminded myself of the provisions of s 21A(2), heeding the objective features already reviewed. 20 Absent any explanation as to why this killing occurred, I am unable to make any finding concerning s 21A(3)(b), (c) or (d), although the use of cooking implements is not indicative of the crime having been the subject of pre-planning. 21 The prisoner is presently forty-nine years of age. Since he gave no evidence before this Court, either at trial or at the proceedings as to sentence, I am dependent upon the content of the pre sentence report (Exhibit B), the report of the psychologist, Ms Robilliard (Exhibit 1) and the report of Dr Nielssen (Exhibit 2) for information as to the subjective features of this case. To the content of the documents identified, I have given close consideration. 22 Ms Gilmore, the author of the pre sentence report, took a history concerning the prisoner's background. The prisoner described to her being a member of a close family unit with a mother, two sisters and two brothers. His father left home when the prisoner was eight years old. The prisoner left home, on the account he gave Ms Gilmore, at the age of nineteen or twenty, and after that he seems to have adopted an itinerant lifestyle picking up labouring duties as he moved along. Eventually, in 1991, he said he came to Sydney. The prisoner told Ms Gilmore that he went on to a disability support pension in 1998 following injury and also because of his addiction to alcohol. The prisoner said he had a drinking problem from the age of seventeen. 23 Ms Robilliard interviewed the prisoner on 6 December 2004. He gave her an account of his early years which is broadly consistent with the account given to Ms Gilmore. He said that after leaving school he did mostly labouring and seasonal work which he picked up in his travels. He told Ms Robilliard that he sustained severe injury to his right leg in a car accident in 1992 and a head injury some four years ago. He revealed to Ms Robilliard his drinking problem. Under the heading "Clinical Opinion", Ms Robilliard reported: "From the biographical information Russell gave it appears he was essentially raised in a stable and supportive single parent family however his mother managed alone under very difficult circumstances. Russell described each of his siblings as personally stable however he mentioned significant personal tragedies in three of their lives. For a period in his mid thirties Russell reported feeling very distressed by the cumulative effect of these family troubles. When he suffered injury in an accident in 1992 he reports becoming reactively depressed which is a common corollary to serious physical injury or illness. With the consequent loss of his capacity to work and earn, and the relationship he had enjoyed for six years with Donna, Russell became a chronic alcoholic. Over the intervening years the client has achieved brief periods of stability however he has continued drinking excessively to the detriment of his personal, family, social and occupational performance. His resultant personality profile confirms socially dysfunctional thinking and behaviour, a self critical and depressive disposition and major alcohol problems, all of which would have influenced his conduct with regard to the victim. He is likely to misunderstand the meaning of interpersonal behaviour and misjudge the impact of his behaviour on others. His ability to control himself would have been severely decreased when he was intoxicated. Long term and chronic alcohol abuse results in cognitive and memory deficits. The ability to organise and systematise thinking, and ultimately behaviour, becomes progressively more evident. In the client's case the haphazard and fragmented fashion in which he gave biographical information strongly suggests that Russell is evidencing alcohol related brain damage. Neuropsychological testing would be required to measure and confirm the degree of loss." 24 Dr Nielssen, in his speciality as a psychiatrist, has had occasion to see the prisoner on a number of dates: 5 December 2002, 19 December 2002, 20 February 2003, 20 March 2003 and 15 February 2005. 25 Dr Nielssen had access to notes of the Illawarra Health Service which reveal that in the past the prisoner had presented to the Emergency Department where the diagnosis was usually that of alcohol intoxication or alcohol withdrawal or alcohol related psychosis. Then, in December 1993, a diagnosis was made of organic psychosis. Dr Nielssen commented that the records show that the prisoner has had numerous admissions to the psychiatric wards of Shellharbour Hospital and to Orana House in Wollongong Hospital. The admissions were usually short term. 26 At his most recent examination, Dr Nielssen concluded that the prisoner was alert and attentive, correctly oriented and with some knowledge of current events. He also disclosed detailed knowledge of features of his court case. 27 Dr Nielssen expressed the following psychiatric diagnoses:

(ii) brain damage secondary to trauma and alcohol abuse;

(iii) schizophrenia. 28 Dr Nielssen went on: "The alternative diagnosis to schizophrenia that was considered was that of alcohol hallucinoses resulting in enduring persecutory beliefs that were consistent with his circumstances." 29 In the concluding paragraphs of his report dated 11 March 2005, Dr Nielssen wrote: "The documents support Mr Wills' account of severe alcohol abuse since around the age of thirty, when he had numerous presentations to hospitals in the Illawarra area in an intoxicated state. The documents show that he also often reported psychotic symptoms, or that his deliberate self harm was in response to symptoms of mental illness and he was often treated as an involuntary patient with antipsychotic medication. Mr Wills' presentation at interview and his account of the basis of his persecutory beliefs was more consistent with the presence of an underlying schizophrenic illness than with an alcohol related psychotic illness. He maintained that he had spent most of his sentence in strict non-association because he believed that other people involved in the offence were associated with prisoners who intended to harm him. The basis for his belief appeared to be typical auditory hallucinations of voices that had detailed knowledge of his case. He did not accept the explanation that the experiences and his subsequent beliefs were symptoms of mental illness. Schizophrenia is more common after head injury, especially in people with an inherited predisposition to develop the disorder. However, his itinerant lifestyle, lack of attachment and the frequent reports of psychotic symptoms in the period before the reported brain injury suggests that his underlying schizophrenic illness was present before he sustained significant brain damage. His recent presentation suggests that he was generally guarded about his symptoms and did not seek treatment, but readily described the symptoms when intoxicated. Mr Wills' underlying psychiatric disorder is likely to have resulted in an abnormality of mind at the time of the offence. Moreover, Mr Wills' refusal to raise his abnormal mental state in his defence casts doubt on his fitness for trial. I believe Mr Wills needs long term treatment with antipsychotic medication. He should also participate in alcohol rehabilitation and commit to abstinence from alcohol after his release, as his risk of further offending is strongly linked to alcohol abuse." 30 Mr Paish relied upon the evidence of Dr Nielssen for two purposes:

(i) he submitted that the mental state of the prisoner was such that the element of general deterrence was rendered less significant than it would otherwise be for a crime of this nature; and

(ii) the need disclosed for long term supervision constituted special circumstances. 31 I shall return to these submissions presently. 32 The prisoner has a criminal history which began as a juvenile. He has offences of dishonesty and of break enter and steal, both as a juvenile and as an adult. There are several offences in the form of assault occasioning actual bodily harm and assaults upon females, two in the nature of indecent assaults. The last assault occasioning actual bodily harm was dealt with in January 2000 attracting a sentence of fifteen months, comprising a minimum term of three months and an additional term of twelve months. 33 The prisoner's record is not a favourable one, and this is of some relevance for the purposes of s 21A(3)(f), (g) and (h) of the Crimes (Sentencing Procedure) Act, 1999. 34 The prisoner has continued since the trial to deny that he committed the crime for which he is to be sentenced. That denial is reflected in what he told the authors of the reports to which I have referred, and there is no element of contrition to be weighed in the prisoner's favour. 35 I remind myself of the purposes of sentencing, which include punishment and denunciation, deterrence of the offender and of others that might be tempted to offend, protection of the community and rehabilitation. 36 Mr Paish referred to the decision in Scognamiglio (1991) 56 A Crim R 81 where the court had occasion to consider the significance of mental disability in connection with general deterrence. It was recognised that general deterrence is a factor which should often be given little weight in the case of an offender suffering from a mental disorder. 37 The significance of mental illness of an offender in sentencing has long been recognised: see, for instance, R v Israil [2002] NSWCCA 255, and in particular the judgment of Spigelman CJ at para 21 where his Honour referred to many authorities in point; and R v Lawrence [2005] NSWCCA 91. See also R v Engert (1995) 84 A Crim R 67; R v Wright (1997) 93 A Crim R 48, and in particular the judgment of Hunt CJ at CL at 50. 38 There is, of course, no evidence before me to enable a finding as to whether any mental disorder from which the prisoner is suffering was causative of the crime committed, but it is accepted that an offender suffering from a mental disorder is not "an appropriate medium for making an example to others": see Wright (supra) at 50. 39 In Engert (supra), Gleeson CJ considered whether deterrence should be given less weight only when the mental abnormality was causally connected to the commission of the offence. The Chief Justice said (at p 68): "Persons suffering from mental disorders frequently come into collision with the criminal justice system. Sentencing such persons commonly confronts judicial officers with the need to make a sensitive discretionary decision. Sentencing is essentially a discretionary exercise requiring consideration of the extremely variable facts and circumstances of individual cases and the application of those facts and circumstances to the principles laid down by statute or established by the common law. The principles to be applied in sentencing are in turn developed by reference to the purposes of criminal punishment. Those purposes were set by the High Court in Veen (No 2) (1988) 164 CLR 465 at 476; 33 ACrimR 230 at 237-238 as follows: ' ... protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform.' A moment's consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the court in the case of Veen (No 2). Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender." 40 Then (at p 71) the Chief Justice continued: "There has been some discussion in later cases as to whether what is described as the 'principle' mentioned above only applies in cases where the mental disorder is causally related to the commission of the criminal offence. As the passage from Dr Barclay's report above indicates, it would not have been possible for the sentencing judge to have found as a fact, in the present case, that there was such a causal relationship. In truth however, for the reasons given at the commencement of this judgment, the question of the relationship, if any, between the mental disorder and the commission of the offence, goes to circumstances of the individual case to be taken into account in the application of the relevant principles. The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case. For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public. By the same token, there may be a case in which there is an absence of connection between the mental disorder and the commission of the offence for which a person is being sentenced, but the mental disorder may be very important to considerations of rehabilitation, or the need for treatment outside the prison system." 41 I heed the above remarks of Gleeson CJ in my present task. 42 I accept the submission here made by Mr Paish that deterrence is to be given less weight than it would be if the prisoner was of healthy mind, and, of course, I am required to arrive at a sentence which is appropriate to all the circumstances of this case, taking account of the objective gravity of the offence and the prisoner's subjective circumstances. 43 Having regard to the date of the commission of this offence, Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act does not apply. 44 Some reference was made to sentencing statistics, and I observe that statistics available for the crime of murder committed prior to 1 February 2003 disclose that of a total of 212 cases, head sentences of eighteen years or less were imposed in fifty-three percent of cases. 45 Care must also be exercised in the consideration of sentencing statistics. So much depends upon the circumstances of the particular case. 46 The prisoner has been in custody continually since 29 October 2002, and it is appropriate therefore to backdate his sentence to commence on that date. 47 I have considered the submission of Mr Paish that there are special circumstances calling for an extended period during which the prisoner would be eligible for release upon parole. However, I am not satisfied that there are special circumstances for the purposes of s44(2) of the Crimes (Sentencing Procedure) Act. It seems to me that the period during which the prisoner will be eligible for release on parole in the sentence I am about to impose is quite adequate to address the matters raised by Dr Nielssen in his report. This is particularly so, it seems to me, when the prisoner has in the past been unwilling to submit to a regime of medication, and the evidence does not establish that he is likely to become more willing in the future. I observe generally as to rehabilitation that I do not regard the prospects as being particularly favourable. 48 In my opinion, the appropriate sentence here is one of eighteen years imprisonment. Accordingly, I sentence the prisoner to a term of imprisonment of eighteen years to date from 29 October 2002 and to expire on 28 October 2020. I fix a minimum term of fourteen years to date from 29 October 2002 and to expire on 28 October 2016. I specify 28 October 2016 as being the first date upon which the prisoner is to become eligible for release on parole. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.