Regina v Andrew Mark Norrie

Regina v Andrew Mark Norrie - [2006] NSWSC 830 - NSWSC 2006 case summary — Zoe

[14]

8 In determining an application under Sch 1 of the Act the Court is to take into account all of the circumstances surrounding the offence for which the sentence was imposed and all offences, wherever and whenever committed, of which the offender has been convicted so far as this information is reasonably available to the Court: cl 3. 9 The applicant pleaded guilty before Finlay J to four charges in addition to the murder of the deceased. These were the armed robbery with wounding of the deceased; two counts of shoot with intent to murder and one count of malicious damage to a dwelling house. At the time of the commission of these offences the applicant was aged 24 years. He had a young companion, Scott Thompson, who was aged not quite 17 years. Thompson was convicted of the manslaughter of the deceased and of one of the counts of shoot with intent to murder. Thompson was mildly mentally retarded. 10 In his reasons for sentence Finlay J described the facts as follows: The events giving rise to the crimes of which the prisoners had been convicted commenced at the end of February 1986 in Brisbane. The prisoners Norrie and Thompson went to a sports store on Thursday, 27 February 1986. At that store Norrie purchased a Sterling semi-automatic .22 rifle, and paid a deposit on another. He also purchased ammunition and a number of magazines for the rifle. The following day the prisoner Norrie returned and completed the purchase of the second rifle. Also on that day, Friday 28 February, he rented an Avis rent-a-car from the Brisbane airport. On the Friday evening of 28 February the prisoners Norrie and Thompson commenced driving south from Brisbane in the rented car. Norrie was the driver. Thompson was unlicensed. They were then armed with two semi-automatic rifles, on the butt of one of which the prisoner Thompson inscribed his first name, "Scott". They had a vast amount of ammunition and spare magazines, camouflage army-like uniforms, a sword and similar equipment. I have no doubt that the prisoner Norrie was generally responsible for this equipment. At 2am on the following morning, Saturday, 1 March, Mr Bishop, with his now wife and her two infant children, were travelling from south Ballina in a rented Nissan vannette on the Pacific Highway. The prisoner Norrie shot at the van from the side of the road. Thompson was with him. A number of bullets struck the van. One exploded the passenger side window by the head of Mrs Hendy, as she then was, some glass going into her eyes. This gave rise to the charge of shooting at her with intent to murder her, in respect to which Norrie has pleaded guilty, and in respect to which the jury acquitted the prisoner Thompson. The prisoner then pursued the van, with Norrie driving. They came alongside the van, then being driven by Mr Bishop, at about 100 kms/hr. The prisoner Thompson was in the front passenger seat of the car, with his gun protruding from the window, firing. One bullet smashed the driver side window of the van, but fortunately missed the driver. This gave rise to the further charge of shooting at Lindsay James Bishop with intent to murder him, in respect of which both prisoners had been convicted. The prisoners' car then rammed the side of the van before driving off. Fortunately no serious injury was occasioned in these events, despite the van having a number of bullet holes in it. The experience must have been one of incredible terror for the occupants of the van. Probably about 2 March 1986 a 1967 Volkswagen sedan was parked at the side of the road near Foxground, near Kiama. It had broken down a few days before, and had been left locked up by its owner. The prisoner Thompson said that while he and the man Norrie were driving along, Norrie said, "There's a car. Let's go and shoot at it." They remained in their vehicle just across the road. Both of them fired a number of shots into the Volkswagen, smashing the windows and making a number of bullet holes in the driver's door and body panel sections. It was night-time. This was the version given by the prisoner Thompson. In respect of this charge of malicious injury to the motor vehicle he was found guilty. In respect of the charge against the prisoner Norrie, to which he pleaded guilty, that on 3 March 1986 at Merou he maliciously injured a dwelling house. On that morning a number of shots were fired into that home at Merou, near Nowra. These shots were fired by the prisoner Norrie, when it was still dark, into the front of the house. There was no suggestion that any people were seen in the vicinity of the house at the time. On Monday, 3 March, the deceased, Mr Breust, a forty-six year old married man, went fishing at Kurrunna Lake, a little south of Merou. He left his car near the side of the highway. The prisoners Norrie and Thompson drove by.

[16]

His Honour considered whether, for the purposes of s 19 of the Crimes Act (as it then stood), the applicant's culpability for the murder of the deceased had been significantly diminished by mitigating circumstances. He concluded that: Here there is no evidence offered, nor could any argument be presented, to make it appear that the prisoner Norrie's culpability for the first crime of murder is significantly diminished by mitigating circumstances. Mr Luland, of Queens Counsel, who is experienced senior counsel, acknowledges this. Indeed there are no mitigating circumstances whatsoever. The only inference which is open is that the prisoner Norrie set out on a planned campaign of indiscriminate murderous violence, culminating in the convictions for which the sentences are to be imposed. 11 After sentencing the applicant to imprisonment for life for the murder of the deceased his Honour imposed concurrent sentences of 10 years' penal servitude for the offence of armed robbery with wounding and 15 years' penal servitude for each offence of shoot with intent to murder and three years' penal servitude for the offence of malicious damage. His Honour declined to fix non-parole periods in relation to the determinate sentences. Each sentence was directed to date from 7 March 1986, being the date on which the applicant had been taken into custody in relation to them. 12 In light of the account that the applicant has given in recent times concerning the circumstances surrounding the offence I propose to refer to the contents of his interviews with the police. He was first interviewed in connection with these offences following his arrest by Detective Sergeant Beaumont of the NSW Police at the Mount Gambier Police Station on 8 March 1986. He volunteered his role in the killing of deceased. He was also questioned about the offences against Lindsay James Bishop and Lorna Joan Hendy. He said this: Q. From what I have been informed between 2:30 and 2:40 am on the 1st March, 1986, the van which I have mentioned containing the people to which I have just referred were travelling in a southerly direction along the Pacific Highway about four kilometres north of the township of Broadwater. Do you understand that? A. Yeah. Q 12 At this time the vehicle conveying those people came under rifle fire. Do you understand that? A. Yeah. Q 13 Can you tell me anything about the incident? A. Yeah I just wanted to kill them inside if I had of known that there were children inside I wouldn't have done it. … Q 23 Why did you fire those shots at the van? A. I just wanted to kill. Q 24 If you didn't know the people in the van why did you want to kill them? A. I just enjoy killing people. 13 The applicant was further interviewed by Detective Sergeant Beaumont at the Narooma Police Station on 13 March 1986 concerning the murder of the deceased. He gave this account: We started off then from Brisbane and drove down on our way to Sydney and we stopped off at the Gold Coast for a few hours and then continued driving through. Later that night we ambushed a red van and us just fired some shots through it then chased it and rammed it a few times with our car then as we were driving along we shot some signs, a road grader, then we shot a house then a blue Volkswagen then we stopped off the night I think it was in the car. The next day we continued driving through Sydney to here Narooma, driving along we saw this car parked at the side of the road I was driving Scott only drove for about 15 minutes the whole time then I did a u-turn and came back, parked next to his car and we got out and walked down the track to where he was fishing we were just talking about fishing and stuff then we walked back up to the car we both got our guns I walked down the track first. The bloke had his bucket and rod in his hand and was just walking back up the track that's when I shot him about three times and he started staggering around a bit I shot the magazine in him. As I was shooting Scott must have come down because when I had finished shooting he was standing next to me then Scott just shot him twice and I took his wallet out of his back pocket then we both ran up to the car. I gave the wallet to Scott and we drove off, Scott went through the wallet and then he threw it out the window. … Q 51 Did you or rather why did you particularly want to kill Mr Breust? A. I just wanted to kill anyone it didn't matter that it was him or someone else.

[22]

In Dr Wong's opinion there was nothing in the applicant's presentation which was suggestive of a formal mental illness. He considered that the applicant exhibited extreme callousness and a total inability to experience the basic emotions with which human beings are normally endowed. In his opinion, the applicant manifested a profound personality disorder of the schizoid type. This applies to individuals who demonstrate defects in the motivation and capacity to form relationships or to become emotionally involved with others, but who do not have other abnormalities of thinking, perception or behaviour. Dr Wong considered the applicant to have the characteristics of schizoid personality to an extreme degree. 18 Dr Milton assessed the applicant at an interview on 27 May 1987. In his report he said that the applicant described fantasies of killing people: going to K-Mart with a couple of others armed with shotguns and "just start shootin' people". Dr Milton noted that the applicant showed little feeling during the interview. He reported that the applicant did not seem to wish to impress, but rather to simply relate what had happened in a flat and rather dull fashion. In Dr Milton's opinion the applicant did not appear to be suffering from a psychosis. He commented on features of the applicant's personality and placed particular emphasis on his inability to form relationships. 19 Dr Shand in his report, dated 29 June 1987, recorded the history that he obtained in an interview with the applicant conducted on 27 June 1987. This included that the onset of homicidal impulses dated to when the applicant was aged 14 or 15 years. Dr Shand noted that the applicant acknowledged the satisfaction that his destructive and homicidal behaviour gave him and that he had volunteered that he had tried to kill another prisoner and that he would do so again if taken out of segregation. In Dr Shand's opinion, the applicant exhibited a severe and intractable personality disorder of the psychopathic type. Dr Shand concluded: He remains unconcerned about a life long prison sentence apart from the loss of freedom involved, and sees it as a desirable opportunity to "bash, stab and kill" more people. Unless there is some subtle neurological basis for such behaviour, there is certainly no treatment for his personality disorder and prognosis for recovery or improvement is zero. He should never be released to the community and will represent a continuing and serious threat to the physical well-being and safety of prisoners and prison staff alike. He is a man of average intelligence with no signs of psychosis. He is fit to plead and instruct counsel. He has no defence under the McNaghten Rules. I feel required to add that he is the most extreme case of this type that I have examined during twenty-five years of forensic work. Clause 7 of the Act

[30]

26 In a report prepared by a clinical psychologist at the Long Bay Prison Hospital, dated 10 October 1989, the applicant was recorded as saying that, "it's quite likely that I would kill someone again". At around the same time, in interviews with a Probation and Parole officer, the applicant was recorded as expressing a wish to be deported to England in order to join the Army and learn more about target shooting and other methods of warfare. The resume of the interview included: Eventually he sees himself in the role of superintendent in a giant death camp where half the world's population will be exterminated to alleviate what he perceives as current gross over population and then he plans to "weed the bad apples" out of what is left. 27 A letter written by the applicant dated 19 January 1990 is annexed to the first SORC report and it includes the assertion, "I just want to kill thousands a day, I hate society, I want to rule forever … ". 28 Dr Gluckstern, the Director of Psychiatric Services of the Prison Medical Service, in a report dated 20 March 1990, observed: [T]here have been differences of opinion about this man's diagnosis; there have been one or two professionals (psychiatrists and psychologists) who believe that this man does suffer from paranoid schizophrenia. I do not share that view nor do the majority of psychiatrists who have seen Mr Norrie. There has never been any clear-cut psychiatric feature to suggest that he is psychotic. Andrew Norrie has an unquenchable desire to kill and I believe that it is this feature in his character which has made some people diagnose his condition as schizophrenia. I believe that he has had "murderous fantasies" since his adolescence and that he derives some sexual gratification from these fantasies. I think most psychiatric opinions about Andrew Norrie agree with my view that he is not suffering from a psychotic illness. Be that as it may I think the important thing is to realise that this man has an unabated urge to kill, it certainly has not altered with medication or with any other form of psychological intervention. I cannot foresee a time when Andrew Norrie's urge to kill would subside and would therefore advise he should not be considered for release in the foreseeable future. 29 It appears from an examination of the materials annexed to the SORC report that the applicant had come under Dr Gluckstern's care on 20 July 1989 and that he continued to have contact with him until his transfer to the High Security Unit, Goulburn in January 1990. 30 A senior prison officer attached to the High Security Unit at Goulburn reported that the applicant was a polite and respectful inmate, but noted that he was reluctant to associate with other inmates, even within the Protection Unit. He was given the position of sweeper in the Segregation Unit and he responded well in this role. 31 In March 1993 Dr Koller, a visiting psychiatrist, reported that the applicant had a history of schizophrenia and noted that he had complained of obsessional thoughts of mutilation and of dead bodies. Dr Koller considered that the applicant had become anxious and agitated as the result of mixing with too many people. At this time it appears that the applicant was being treated with the use of major tranquilizers. Dr Koller described the applicant's presentation at examination as mentally well and in touch with reality. 32 The applicant was transferred as a protection prisoner to the Maitland Prison in October 1994. He was moved from strict protection to a lesser level of protection and he became aggressive and threatening towards officers and inmates. His behaviour was monitored by officers and medical staff and he was described as settling down and assimilating into the normal Wing routine. His case officer noted that he was extremely moody. 33 The applicant was transferred from Maitland to the Lithgow Correctional Centre. Shortly after this, on 14 September 1995, he engaged in an act of relatively minor self mutilation using a concealed razor blade. After this incident he settled down and was reported to be associating with other inmates. 34 A supplementary report by SORC, dated 20 October 2005, annexes copies of reports and recommendations made during the applicant's custody in the Lithgow Correctional Centre. 35 In 1996 the Visiting Committee reported that the applicant was participating in psychological counselling regularly. 36 The SORC report records that the applicant has not presented as a management problem since his return to New South Wales following the proceedings in Victoria. 37 The staff at Lithgow reported that the applicant's behaviour and attitude were satisfactory, but that as he was on strict protection at his own request. This classification prevented him from engaging in employment. The Chairperson of the SORC reports that the applicant's life sentence has the effect that he is ineligible to undertake major therapeutic programs that would otherwise be available to inmates at high risk of violent recidivism. His access to programs is also severely restricted by reason of his strict protection status and his A2 classification.

[32]

It is very tempting in the face of the extreme type of apparently purposeless and unmotivated violence which this man has exhibited to search for psychiatric explanations of such behaviour. I am quite convinced that Mr Norrie's offending is not on the basis of any imposed mental illness but I remain frustrated in terms of lacking understanding into the development of his particular personality of a type which would allow such behaviour to emerge. It would seem unlikely that any psychiatrist will gain that insight at this late stage. However, without doubt, Mr Norrie does suffer from a significant personality disturbance. There are some indications that a degree of psychological maturation may have occurred, for example, he clearly can express that his behaviour was morally wrong and he is able to articulate a degree of victim empathy, albeit that not accompanied by what would be the usual parallel emotional expression, and I suspect that that is but one demonstration in this man's character. That underdevelopment is likely to be permanent. ... I would not describe the prognosis as unremittingly gloomy but I could be no more specific than that. 40 Dr Lucas carried out a psychiatric assessment of the applicant in connection with the present application on 27 July 1998. He interviewed the applicant at the Lithgow Correctional Centre. At the time Dr Lucas had a copy of the SORC report of 8 November 1995, the Statement of Facts and the annexures thereto, which included the previous psychiatric assessments that I have referred to earlier in these reasons. Dr Lucas also had access to the applicant's clinical file at the Lithgow Correctional Centre, which contained a number of psychiatric reports and other documents that did not form part of the material attached to the SORC report or to the Statement of Facts. Following the interview Dr Lucas obtained the applicant's clinical file from the Morisset Hospital. He subsequently prepared a report dated 25 July 1999. 41 In his first report Dr Lucas commented that he had found the assessment difficult due to the applicant's personality traits and to the fact that he had not been especially forthcoming. At the time of 1998 interview the applicant was classified as an A2 inmate and it appeared that his classification would not be changed until his sentence was determined and the earliest possible release date known. At the time of this interview he had been in the Lithgow Correctional Centre for about three years, under the normal protection regime. He reported that he had been prescribed a variety of medications, mostly Melleril, which he was still taking at that time.

[34]

44 The applicant told Dr Lucas that he would not shoot anyone again. His reason for confidence in this respect was that he did not want to keep going to gaol. He volunteered that "shooting that person didn't bother me the slightest". 45 Dr Lucas asked the applicant about how human life might be valued. He reported that the applicant responded that he did not know but, "a lot of people die every day, people always die, they get born". He said that at the time of his first admission to hospital at Long Bay he had a strong feeling that he wished to kill, but that since taking medication he had not felt so inclined and that all that he wanted to do was to sleep. When asked what he could put to the Court in support of his application for a determinate sentence the applicant told Dr Lucas that he wanted to stay out of prison. When asked what he would do if thoughts of killing returned after his release he said that he would take his treatment and that he would not get drunk. Dr Lucas noted that in previous assessments the applicant had appeared to be indifferent to what happened to him. When asked by him about the extent to which he cared about what happened to him the applicant responded, "a lot. I want to get things before I am too old or I'll never get a job". 46 Dr Lucas concluded in his first report that: His personality disorder is severe and includes schizoid, antisocial and borderline traits. If we put aside for a moment the possibility he has a history of schizophrenia, I think it is fair to say that Mr Norrie's personality disorder is extremely disabling, affecting him perhaps more than chronic psychosis does some people. 47 Dr Lucas assessed the applicant again on 19 March 2004. His second report is dated 3 May 2004. At this time he had access to the supplementary report of the SORC and to the report of Dr Walton. Dr Lucas commented that the applicant spoke well of his time at the Port Phillip Correctional Centre, commenting on the availability of educational programs and of access to computers. He reported having undertaken a number of programs including; anger management; coping with people and talking to them; cleaning and mathematics. He found these interesting and was generally positive concerning the administration of corrections in Victoria. In contrast he noted that in New South Wales many programs were not available unless a prisoner had achieved a C1 classification. Such a classification is only available a couple of years prior to release. The applicant also commented favourably of the facilities available in the cells in Victoria and on the quality of the food. 48 Dr Lucas detected a favourable change in the applicant's presentation in the March 2004 interview. On this occasion the applicant discussed his difficulty in experiencing emotion. Dr Lucas observed: I thought Mr Norrie's discussion, most of it quite spontaneous, indicated his awareness of his serious difficulties with expectations about emotional reactions and experiencing and understanding them. I thought this a considerable advance, it may well indicate an improvement in his insight and his ability to benefit from regular individual counselling. 49 At the time of this second interview the applicant reported that he was doing a tertiary preparation course. It was his intention to complete Years 11 and 12 and to undertake tertiary studies through the University of Southern Queensland. He expressed a liking for mathematics. In the course of this interview the applicant expressed himself as "100 percent" confident that if released he would not hurt or kill someone. 50 The applicant's account of his offences on this occasion was that most of the violence had occurred in the space of 24 hours. He said that he had just "blew up for 24 hours". He claimed that he was not really the criminal type: his only crimes were in this period and that the two people had been killed in the one day. 51 Dr Lucas considered the applicant's presentation in March 2004 to be consistent with the severe personality disorder that he had previously observed, which manifests as a mixture of schizoid, antisocial and borderline traits. He considered that the applicant had matured to some extent, but that he remained a rather damaged man with longstanding personality problems. In Dr Lucas' opinion the applicant is now accessible to a psychological approach and may benefit from a lengthy program with regular contact with an experienced psychologist. While Dr Lucas was of the opinion that the applicant's prognosis has improved since their initial interview he considered that it remained guarded. He concluded: Mr Norrie will always have certain personality traits affecting his ability to interact easily with others but if his account of the last few years is correct he has more capacity to change than previously thought. Given the extent of his difficulties any degree of change is worth not only his own efforts but those of the authorities.

[47]

68 The Crown's submission was that in the case of an application for the determination of a term and a non-parole period for an existing life sentence involving an offence in which the level of culpability of the applicant for the offence is of an extreme nature falling within the worst case category, it was appropriate for the Court to decline the application and direct that the applicant may never re-apply to the Court. The Crown referred to a number of recent statements of principle concerning the sentencing of offenders for murder in circumstances that attract the provisions of s 61(1) of the Sentencing Procedure Act; R v Harris (2000) 50 NSWLR 409; R v Merritt (2004) 59 NSWLR 557 and R v Fernando (1999) NSWCCA 66. In Merritt Wood CJ at CL (with whose judgment Tobias JA and Hidden J concurred) said at 570; [52]: In my assessment, the primary focus of the legislation [s 61 of the Sentencing Procedure Act ] is directed towards how extreme the offender's culpability is. Both R v Harris and R v Miles , and the various decisions that have led to life sentences, have emphasised the importance of this factor, and for the need for the Court to find features of very great heinousness, along with the absence of any facts mitigating the seriousness of the crime. In these circumstances, I can see no reason why the section should not apply, if the culpability is so extreme that any combination of the stated indicia would lead to the view that the only sentence, that can be passed, is one of imprisonment for life. The applicant has been sentenced to imprisonment for life. My task is to determine the application in accordance with the provisions of Sch 1 of the Act. 69 Mr Craigie submitted that in determining an application under Sch 1 the Court is required have regard to, and give substantial weight, to any relevant recommendations, observations and comments made by the sentencing court when imposing the sentence concerned. He noted that the sentencing judge had not made a non-release recommendation (as that expression is defined for the purpose of Sch 1). My attention was also drawn to Finlay J's direction that a copy of his remarks were to be taken out and brought to the attention of the Parole Board so that it could take them into account "when and if it considers a date of release, and any conditions of release, in due course, of the prisoner Norrie" (ROS at 9). In Mr Craigie's submission Finlay J sentenced had the applicant in the expectation that he would be released at some future date and this was a matter to which the Court was to give substantial weight. 70 The fact that Finlay J contemplated that the Parole Board may give consideration to the applicant's release and that he did not make a non-release recommendation are not matters that to my mind are to be taken as providing support for the application. At the time Finlay J passed sentence, s 463 of the Crimes Act made provision for the release of life sentenced prisoners on licence as the result of executive action. His Honour's direction that his remarks on sentence be brought to the attention of the Parole Board so that it could take the matters set out therein into account, if and when it considered his release, does not convey that his Honour was of the opinion that he should be released at some time in the future.

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