The Evidence Tendered by the Prisoner
135 It is necessary to refer to the evidence which was placed before me in an attempt to understand why the Prisoner has engaged in such unremitting and escalating criminality. It came from the Prisoner, his mother and Anna Robilliard, a forensic psychologist and it shows that the Prisoner was born on 25 May 1971. He was apparently the youngest in a family comprising on his account 10 siblings. His mother, who is an indigenous Australian worked as a nurse, while his father worked as a removalist. It was reported that the family home had been stable and that his parents have a close continuing relationship. The case is not one where the Fernando considerations (R v Fernando (1992) 76 A Crim R 58) apply.
136 The Prisoner claimed to Ms Robilliard that he was sexually molested by one of his step brothers for a period of two years or so, commencing when he was aged eight years. He eventually ran away from home and began to associate and identify with a delinquent peer group. It was at that stage of his criminal behaviour that detention in boys homes commenced. At one stage he was placed in foster care but ran back home as he did not care for that experience.
137 He was educated in the community to part way through Year 8, and thereafter continued his education, on an intermittent basis, while in custody, which regrettably included learning, from older boys, how to steal motor vehicles. He does not seem to have passed beyond Year 10, and has never held down any form of employment, although he has acquired some training and experience as a welder and labourer while in custody.
138 He has been involved in some short term unstable relationships which collapsed because of his imprisonment. The last relationship ran into problems because of his use of drugs and his friendship with another woman, which apparently led to a fight between her and his partner. The Prisoner became involved in this altercation, and was charged with several offences, although on his account unfairly.
139 It was by reason of his concern about being sent back to prison because of these charges, and his lack of confidence in the solicitor who was acting for him that, he said, led to him not appearing in court. It was also this factor, he says, that sent him seriously off the rails in 2003, and led him into an escalating use of illegal drugs and to the saga of criminality that now sees him awaiting sentence for the 19 offences which I have mentioned.
140 The Prisoner informed Anna Robilliard that he had sniffed glue and petrol in late childhood but gave that practice away because of an unfortunate experience while in a detention centre. In his evidence he claimed to have commenced sniffing these substances at the age of eight or nine years.
141 He began to smoke cannabis, although not to any great extent, preferring to smoke heroin, a practice which he says he began in late 1997 while in Lithgow Correctional Centre. Following his release from custody in mid 2003, he stopped using heroin in favour of smoking "shabu" or "ice", in the free base form of methamphetamine.
142 His intelligence has been assessed as falling within the average range. From Ms Robilliard's report, it appears that psychological testing has shown that he has a "highly significant score on a dimension measuring symptoms of paranoid personal disorder", as well as "significant scores on the dependent, depressive, antisocial, avoidant, schizoid and passive/aggressive scales in that order".
143 Ms Robilliard reported:
"The central issue for people suffering Paranoid Personality Disorder is suspiciousness and defensiveness combined with feelings of superiority. They are likely to feel bitter toward other people who have been successful and deny their own shortcomings, often blaming others as the cause. They are constantly vigilant, expecting others to criticise, deceive or injure them, and innocuous events will be perceived as insults or attempts to control and manipulate them. Responses will frequently be abrasive, touchy, hostile and irritable. The self fulfilling nature of Paranoid Disorder reinforces the patterns of behaviour. Others react to them negatively thus reinforcing their perception of the world as a dangerous and insecure place.
Paranoid disorder in combination with Schizoid and Avoidant personality attributes, results in a progressively more insular, reclusive and socially isolated disposition. Insularity is intended to protect the individual from fears that others may be able to influence or control them. In combination with Passive/Aggressive personality attributes, paranoid presentation would represent an exaggeration of the persons' fault finding, resentful and discontented characteristics.
Antisocial personality attributes are consistent with an history of criminal behaviour and substance abuse. Impulsive acting out of antisocial feelings is the hallmark and these individuals who are typically interpersonally irresponsible violating the personal rights of others in work, relationship and financial context."
144 Ms Robilliard also reported:
"On the section of the test that measures current reactive mood states and behaviours, significant scores on this profile are on scales measuring Anxiety, Dysthymia, Drug Dependence and Post Traumatic Stress Disorder. The highest score, which is on the Dysthymia scale, is equivalent to reactive depression. The individual is acknowledging feelings of sadness, pessimism, hopelessness, apathy, low self-esteem and guilt, which are directly related to current life events and circumstances. A sense of futility generally pervades their thinking and they are pre-occupied with their own inadequacy and helplessness. Suicidal ideation may be present and should be monitored."
145 Of concern, apart from the foregoing, is the history which the Prisoner provided to Ms Robilliard of having a sense of hopelessness, and of his idea about the future being "a blank", as well as her assessment that the current offences took place at a time when his life was in chaos and that the more chaotic he felt the greater the amount of drugs he used. She thought him likely to become fragile, and possibly self destructive after sentencing was completed. Clearly the correctional authorities will need to give careful attention to this, as he has a history of attempted suicide.
146 Ms Robilliard found no signs of psychiatric illness, such experience that he had had in the past of paranoid and delusional episodes having been attributable in her view to heavy drug use.
147 Attention was drawn by Ms Robilliard to the fact that Robert Julien in Primer of Drug Action (2001) describes ice as:
"a free base form of methamphetamine". In other words 'ice is to methamphetamine as crack is to cocaine: the free base concentrated smokable form of the parent compound. Unlike crack, methamphetamine has an extremely long half life (about 12 hours) resulting in an intense, persistent drug action.
Repeated high dosage of methamphetamines are associated with violent behaviour and paranoid psychosis…Just as prolonged cocaine use can result in psychoses resembling paranoid schizophrenia, smoking ice produces a pattern of acute, delusional and psychotic behaviour. However, unlike that of cocaine, amphetamine induced psychosis can persist for several weeks."
148 In a lengthy report that was tendered by the defence, Associate Professor Starmer described the effects of methamphetamine, cannabis and cocaine use.
149 In relation to the substance methamphetamine, of which crystallised "ice" tends to be a very pure form, he explained that it "can have an effect in increasing libido, and a speeding of mental processes to the extent that the subject becomes submerged in a flood of thought associations, so that the attention jumps rapidly and ineffectually from one thought to another, as in a manic psychosis". He also stated that high doses can result in the development of an amphetamine psychosis, which is characterised by intense emotional lability, hallucinatory phenomena and paranoid ideation in a setting of clear consciousness, and which closely resembles schizophrenia. He also indicated that the substance may lead to thought disorder, and that withdrawal can lead to amphetamine "crash", which involves a depressive phase, fatigue, and suicidal tendencies.
150 Otherwise he referred to the well known effects of chronic cannabis and cocaine use, in relation, for example, to impairment of memory, concentration, cerebration, and elevated mood or euphoria; which do not require any greater analysis. Professor Starmer observed, finally, that while it is entirely possible that a change in behaviour can be attributed to the use of "ice", that would require a close examination of time-relationships between its use and the change in the pattern of offending.
151 The Prisoner did claim in his evidence that his use of this substance escalated after the assault charges had been brought, and that the more he smoked this substance the more he committed offences. He also said that he had not considered that the further offences mattered because of the likely consequences of the assault charges. The proceeds of the robberies he said he used to purchase more drugs.
152 On his account the whole period was quite unreal and he cannot believe the mess in which he found himself. Otherwise there is very little material available upon which I can determine the extent of his use of "ice" or its time relationship to the offences. That it had some effect may be accepted, but it is also not to be overlooked that the Prisoner had anything but a good record before the assault charges, and there is very strong evidence that he was already committed to a life of crime.
153 In relation to the murder offence, he said that it had been his intention, having checked out the location and the habits of the deceased, to wait for his departure, to open the boot of his car, to grab his bag with the day's takings, and to then run. The plan went astray, on his account, when the deceased seized his arm as he tried to operate the boot release, and held onto him and yelled out.
154 He said that he pulled out the gun, which he had previously loaded, in an attempt to scare off the deceased, but when he continued to struggle with him, the weapon discharged inflicting the fatal wound.
155 He said that he had been smoking "ice" before committing the offence, and had not realised, until the following day, that the victim had died.
156 He indicated that he had difficulty in talking about his emotions, but said that he felt "pretty bad" about this offence and that he felt "sorry" for the victim's family, although he acknowledged that was a "feeble" word to express his feelings. He claimed to have had bad dreams about the incident, and had acknowledged his guilt to police to get it off his conscience, an observation which does not sit well with his continuing offending after this offence, or with his attempt to escape arrest on 22 August 2003.
157 One might have expected that, having killed in the course of a robbery, he would have refrained from any further robberies using a gun had he been truly remorseful for the murder. To the contrary he committed a large number of further robberies over the course of which he presented the same weapon at his victims. His explanation to the effect that he had pushed the earlier murder to the back of his mind does not sit comfortably with him having entertained any great concern over that offence.
158 In relation to the offences involving Ms EC, he asserted that he had also taken drugs before its commission, and had gone to the shopping centre where the hijack occurred, only with the intention of stealing a motor vehicle, and without any plan to have forced sexual intercourse with anyone. He acknowledged that when he had been interviewed by police, he had been prepared to admit his guilt, but had not wanted to talk about the matter because he felt ashamed and embarrassed about his conduct. He claimed to feel "bad" about the victim.
159 The selection of the victim's motor vehicle, with her sitting inside it was, on his account, a spur of the moment decision, although as he conceded he and his companion had been casing the area for some time looking for a suitable vehicle to steal.
160 When asked what he had attempted to do in the past to address his drug habit, he said that he had approached several medical practitioners for help, but had been turned away as they did not treat "junkies". He also said that he had never been offered any assistance while in custody, and that during his last release, he had tried home detoxification but that it had only lasted a few weeks, having been interrupted because of his relationship problems and the assault charges.
161 His mother gave evidence to the effect that he had first fallen into trouble due to the encouragement of the boyfriend of one of his sisters, who had been a car thief, and that from the age of ten or eleven until the age of seventeen he had spent most of his life in boys homes. Thereafter, until his latest release, she said he had spent most of his life in adult prisons.
162 She also said that his last release had been his longest period outside and confirmed that he had tried to obtain assistance from medical practitioners, without success. She had enlisted the aid of the Aboriginal Health Service, and as a result he had tried detoxification at home. She also confirmed that he had gone off the rails again as a result of his concern that his parole would be revoked by reason of the assault charges, which he had described as having been a police set up.
163 She said that both she and her husband had health problems which made it difficult for them to visit him in custody. She had however seen him twice since his arrest on 22 August 2003, and noticed that he had put on weight and looked "like [her] son again". She said that he phoned his family daily and had sent letters to them apologising and expressing regret for what he had done. She also noted that he has said that he now has "no future".