REGINA v. CARROLL [2000] NSWSC 410

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

SENTENCE 1 HIS HONOUR: Lee Dean Carroll was indicted for the murder of Stephen Michael Pagett at Kingswood on 17 December 1996. 2 On 9 February 2000, he pleaded guilty to the manslaughter of Mr. Pagett and that plea was accepted by the Crown on the basis of diminished responsibility. He is convicted of that offence. 3 As both the Crown and the offender's counsel submit, I deal with the matter as provided by the Crimes (Sentencing Procedure) Act 1999 (the Act). I can see no disadvantage to the offender would result. 4 I have been provided with detailed written submissions and extensive material by both counsel. This was of great assistance.

5 With the Crown's consent it was requested I take into account, pursuant to s.33 of the Act, two offences: the first, that he at the same time and place did assault a person also then present, Michelle Thomas, in that, after having pointed the gun at Stephen Pagett and firing a shot which hit him in the upper chest/throat area, he turned the gun on Michelle Thomas and said, "Lay down on the floor or you'll get it too", an offence under s.61 of the Crimes Act 1900, punishable by a maximum of two years' imprisonment; and the second, that on or about 17 December 1996 at Kingswood he did possess a firearm, namely a shotgun that had been shortened, an offence under s.14(b) of the Firearms Act 1989, which if prosecuted on indictment carries a maximum penalty of 10 years, but which if prosecuted summarily, carries a maximum penalty of two years. 6 The offence of manslaughter, to which he pleaded guilty, is punishable by a maximum penalty of 25 years. The weapon referred to in all of the charges is the weapon with which the manslaughter was committed. The Crown has submitted, and I accept, that I should regard the applicable maximum for the firearms offence prosecuted in the way it has been in the circumstances as two years. 7 The offender admitted, by his plea, the elements of murder in relation to Mr. Pagett and, in particular, that he intended to kill or at least to inflict grievous bodily harm upon him and he further admitted his guilt of the two additional offences which I take into account when dealing with him for the offence of manslaughter. 8 Victims Impact Statements were provided to me on the plea and I have treated them as I am required to consistently with the decision of the Court of Criminal Appeal in Regina v. Previtera (1997) 94 A. Crim. R. 76. 9 Since the principal crime was committed prior to 3 April 1998, the Crimes Amendment (Diminished Responsibility) Act 1997 did not apply and the relevant provision, the operation of which reduces what would otherwise be murder to manslaughter, is s.23A of the Crimes Act 1900 as it stood prior to that former enactment. 10 The plea was accepted as a consequence of extensive psychiatric enquiries being made into the offender's mental state, by the Crown and the offender's legal advisers at the time. The Crown accepted the plea on that basis only on the receipt both from the defence of psychiatric reports obtained on the offender's behalf, and also on obtaining its independent psychiatric advice from Dr. Skinner. All four psychiatrists who furnished reports concurred in finding support for the requirements necessary for the application of the statutory provision. Further, the facts before me both as to the immediate circumstances of the offence, the offender's prior and subsequent circumstances and the assessments of him by other medical practitioners clearly support their views that, whatever psychological condition he suffered from at the time of the crime his mental responsibility was substantially diminished. All the material, as the Crown accepts, clearly establishes the offender's mental responsibility was substantially diminished. Even disregarding the transient effects of the drugs and alcohol he had taken on him, his mental state clearly was gravely affected. 11 There is no dispute as to the facts. About a week before the killing, the offender's older brother and another man noticed the offender in possession of the shotgun and arrangements were made apparently to shorten it. On 17 December 1996, the day of the killing, the offender was drinking and smoking cannabis at his brother's home for some hours. At about 11.00 pm with his nephew, Phillip Carroll, he drove to Blacktown and, upon arrival at a home in Blacktown, knocked on the door. When there was no answer, he abused the householder and smashed the glass in and left. He then directed his nephew to drive him to the Castlereagh Relaxation Centre at Kingswood and the offender went into the relaxation centre, which was upstairs, carrying a green cloth bag which contained the loaded shotgun. The premises comprised two units, one of which contained Michelle Thomas and the deceased who were watching television. 12 In a conversation with Ms. Thomas, the offender insisted on seeing the person Nina Sciberras, whom he insisted he had come to see. Ms. Sciberras was next door in unit two and Ms. Thomas declined to disturb her. The deceased, whilst seated on the lounge, asked the offender, "What's your name, mate?". The offender pulled the green bag off the gun, pointed the gun at the deceased, said, "You want to know me name?", and fired one shot, which hit Mr. Pagett in the upper chest/throat area. Mr. Pagett screamed and walked from the room holding the wound. The offender then turned the gun on Michelle Thomas who was standing about 1.5 metres away and said, "Lay down on the floor or you'll get it too". 13 The offender directed Phillip Carroll to drive him to Lillian Carroll's house. Close to this address the offender leaned out of the van window and fired a shot into the air. Phillip Carroll drove the van back to his father's home. 14 Mr. Pagett was conveyed by ambulance to Nepean Hospital but at 1.43 am on 18 December 1996, he died. The direct cause of death was described by Dr. Hulewicz as "shotgun wounds to neck and chest". 15 On 18 December 1996 at about 5.30 am, Michelle Thomas was handed four large photo albums and asked to look through them to see if she could identify the two men she saw shortly before midnight on 17 December 1996. She identified a photo of the offender as the man who shot the deceased. 16 On the night of 18 December 1996, the offender and Phillip Carroll camped out near the M4. About 8.15 am on 19 December, they attended the Shell Service Station at Marsden Park where the offender made two phone calls. An off duty police officer, Constable Price, saw the two men walking along the road near the garage and contacted other police. Both men were arrested hiding in the bush nearby. They were conveyed to Blacktown Police Station. The offender has been in custody for this offence since then and, pursuant to s.24 of the Act, I take that into account. His sentence will date from that day. 17 The offender took part in an ERISP comprising 250 questions and answers. He agreed that he was at his brother Phillip's house on 17 December 1996 having about eight beers over the day and watching Phillip Junior work on the car. He admitted breaking the window at Mr. Frohreich's house but stated it was an accident. He stated that he then went home to bed. The offender denied any knowledge of the shooting of Stephen Pagett on 17 December 1996. The offender mentioned that he had previously been in a "mental institution" (Bloomfield Hospital). 18 On 10 August 1999, Phillip Carroll made a statement to police admitting that he and the offender went to the Relaxation Centre on 17 December 1996. He stated that he did not know the prisoner had a gun. He gave sworn evidence that he would give evidence for the Crown in the trial of the offender. 19 Subsequently, the offender was examined by the four psychiatrists, namely, Dr. Wilcox on 12 August 1999, Dr. Strum on 13 August 1999, Dr. Westmore on 27 September 1999, all engaged by the defence; and Dr. Yvonne Skinner on 27 January 2000, engaged by the Crown. To the psychiatrists, the prisoner admitted he was the person who shot the deceased. 20 The opinions of all four psychiatrists were that at the relevant time the offender was suffering from an abnormality of mind arising from an inherent cause, namely either borderline personality disorder or acute depression or both and that his mental responsibility was substantially affected. 21 I had previously dealt with the offender's nephew on a charge of failing, without reasonable excuse to bring information to the attention of a member of the Police Service, which information might be of material assistance in securing the apprehension of Lee Dean Carroll, and that nephew, as I have said, had, on 10 August made a statement to police and agreed to give sworn evidence concerning his uncle. 22 As soon as all the psychiatric evidence was forthcoming and the Crown indicated it was prepared to accept a plea to manslaughter, the plea was then entered on that basis. Taking that into account under s.22 of the Act, his sentence will therefore be less than would otherwise have been imposed. But I have regard to his earlier denials of involvement when assessing the appropriate weight to be given to the plea. 23 Despite the matters referred to in the histories given to the psychiatrists and in the character material, the offender has almost no criminal record. 24 In the material provided to me were the statements of Terrence Humphries concerning events prior to 17 December and various other statements concerning subsequent events. That material discloses various offences, particularly as allegedly involving the gun and the drugs with which offences the offender has not been charged. 25 Both the Crown and the offender's counsel have submitted I should, having regard to the principles enunciated by the High Court in The Queen v. De Simoni (1981) 147 CLR 383, consider what is referred to in that material by way of background and context in relation to the submissions concerning the degree of mental responsibility remaining in the offender at the time of the crime charged. 26 In particular, both the Crown and the defence in the light of the medical opinion, to which I shall turn shortly, have contended that the offender is to be sentenced on the basis that his act of raising the shotgun and shooting was on impulse, unpremeditated and without any prior formed or planned intention to rob or kill on the night. So much I accept. The offender has consistently maintained to the doctors that he went to the premises to sell the gun or barter it for drugs. 27 However, he has contended by his counsel that he didn't realise the gun was loaded although that contention is inconsistent with an intention to kill or do grievous bodily harm or that the offender was recklessly indifferent to human life, in that he knew that his act was likely to kill. That contention is inconsisent with the plea and simply does not accord with the undisputed objective facts even having regard to the offender's mental state. He plainly intended to shoot not dry-fire and even affected as he was he must have, at least realised a shotgun blast would at least cause grievous bodily harm. I reject that contention and find that the offender had at least an intention to cause grievous bodily harm when he fired, albeit it was formed when his mental responsibility was substantially affected as I have held. 28 As I said during argument, I accept that this is a severely disturbed young man, who during that period was affected by the use of various drugs, was violent in an irrational way and who had over the preceding years grown more disturbed and more violent progressively, whatever be the psychological mechanism that was operating, and that the results of it were certainly a grossly disordered personality coupled with depression, suicidal feelings and a disregard because of the operation of those medical conditions, for matters for which a reasonable citizen would have had regard. 29 The plea means that he had all the elements of murder and that at that time he was, because of his medical condition, substantially unable to act in a rational manner. But I must still apply the principles set out by the High Court in Veen v. The Queen (No. 2) (1988) 164 CLR 465 at 476-477, discussed in Regina v. Engert (1995) 84 A. Crim. R. 67 at 68-71; Regina v. EJ (CCA, unreported 1 April 1997); Regina v. Tran [1999] NSWSC 1146 and applied by me in Regina v. Burke [2000] NSWSC 356. The sentence must reflect the objective seriousness involved in the taking of a human life in such a way and the seriousness of the offences taken into account. Nonetheless, and having regard to his mental condition, it is necessary to structure the orders the law requires me to make so as to have regard to the application of those principles of sentencing to his actual culpability and to impose a sentence which reflects those principles in the total sentence and in its components. It is also important that the sentence and its components meet the community requirements that the period during which he might be able to be liberated has a true meaning of advantage to the community and the period during which he is detained in custody be devoted not simply to a mere quarantine but to achieving some community purpose of punishment and assistance to the community goal of rehabilitation. To do so is to serve the ultimate sentencing goal of protection of the community: Regina v. Wright (CCA, unreported 28 February 1997). 30 Here, special circumstances are clearly made out: Regina v. B (1993) 68 A. Crim. R. 547 and particularly having regard to the principles in Regina v. Fernando (1992) 76 A. Crim. R. 56 and what was said by the Court of Criminal Appeal in Regina v. Leonard (CCA, unreported 22 November 1996). 31 Elements of general deterrence and personal deterrence and rehabilitation and the balance between them plainly need modification in a case such as this: see Regina v. Scognamiglio (1991) 56 A. Crim. R. 81 and those cases which deal with the appropriate balance to be effected where an offender is suffering from some such condition as is this offender. 32 As Dr. Skinner had access to the histories given to and the opinions of the other psychiatrists as well as the case papers and the prison medical clinic records, it is convenient to refer to the offender's prior personal circumstances, as set out in her report, tendered by the Crown. 33 I turn to the offender's personal circumstances. He was born on 29 November 1974 and is now 25 years of age. He is Aboriginal. He had, apparently, a long history of depression and an intense relationship collapsed some four months prior to the offence. He recommenced abusing alcohol and drugs. His family considered his committal to a mental hospital. He told the doctor he was suicidal and attempted to kill himself with his cousin's gun (the murder weapon) and sought to exchange it for drugs or sell it. 34 He is the second youngest of 11 children. His family had followed the opportunity for employment, moving frequently about the State. His parents separated when he was 10. He has lived with various relatives. His education is limited. The family has a tragic history apparently involving mental illness, a death and another severely injured sibling. 35 He is epileptic and had abused drugs and alcohol from an early age. 36 He has an appalling history of severe self-mutilation (over 100 scars) and suicide attempts and had been treated for a few days in a psychiatric hospital. 37 Dr. Skinner concludes that:- "Lee Carroll suffers from borderline personality disorder. Borderline personality disorder may be regarded as an underlying mental condition, characterised by a pervasive pattern of instability of interpersonal relationships and marked impulsivity. Mr. Carroll has demonstrated a pattern of unstable and intense relationships characteristic of the disorder. He has a past history of instability of self-image and self-harming behaviour. He may have been suffering from depression or from a markedly reactive instability of mood around the time of the alleged offences. However, the principal and pervasive underlying mental condition of borderline personality disorder may be viewed as an abnormality of mind from inherent causes. Thus, I believe that he may have a defence of diminished responsibility as a result of his personality disorder. This abnormality of mind reduces his ability to control impulses and frustration and to deal with mood changes in an appropriate manner. Although he admitted that he had consumed alcohol and had taken drugs around the time of the alleged offences, and this may have been a contributing factor, I believe that the principal problem in relation to his mental state and behaviour is his underlying condition of borderline personality disorder. Psychotherapy is generally recommended as a form of treatment for borderline personality disorder. In the custodial setting, Mr. Carroll has received this form of treatment from the prison psychologist and also from Dr. Daniels. Although prison medical records show that there have been some outbursts of verbal aggression and a number of occasions on which Mr. Carroll was depressed and felt suicidal, there is evidence that these episodes have been less frequent over the last 12 to 18 months and that his psychological condition has generally improved. It is to be hoped that his personality will undergo some maturation over the next few years. I would recommend continuing treatment with his present medication, gradually reducing the doses of diazepam over time and continuing psychological therapy. Mr. Carroll has a good understanding of the charges against him and the legal proceedings. He is fit to plead and to stand trial." 38 In custody he has been detained in hospital facilities and treated with appropriate medication, particularly by Dr. Daniels from whom a report was obtained evidencing the offender's good progress to rehabilitation and in overcoming his illness. 39 His statements to the psychiatrists and that in evidence before me showed a real degree of insight and contrition. One can see in the reports of the psychiatrists a developing prospect of rehabilitation whilst in imprisonment in his behaviour and insight. 40 The evidence of the chaplain, the reports of the drug and alcohol worker and a Corrective Services officer are greatly to his credit. 41 The Crown submits:- "The factors which need to be considered on this issue are:- 1. The guarded prognosis of the psychiatrists given the prisoner's longstanding personality disorder and the difficulty of treating such a disease. 2. The consensus that the offence may well have occurred without the ingestion of drugs and alcohol, although they were undoubtedly contributing factors. 3. The fact that the prisoner resorted to alcohol and illegal drugs which contributed to the likelihood of such an offence occurring. Obviously such drugs will be available to the prisoner on his release from prison. 4. Although his record is minor, there is evidence that the prisoner is prone to violence. That evidence is contained in the statements of Melissa Toivonen, Phillip Paul Carroll and Terrence Humphries." 42 In considering these matters, I apply the principles I have earlier referred to. In particular I have regard to the effects of the drugs and the intoxication as not mitigatory but indicating a real danger to rehabilitation on the offender's release when taken in conjunction with his psychiatric condition. In this regard, I note the matters referred to by Spigelmen, CJ. in Regina v. Henry (1999) 46 NSWLR 346, applied by me in Regina v. Jancek [1999] NSWSC 1126 and Regina v. Burke [2000] NSWSC 356. 43 In relation to the special circumstances, he will need both a long period of support and assistance and probably treatment in his own and the community's interest. In structuring the sentence to reflect this I note the change in the law affected by the passing of the Act. In the Second Reading Speech appears the following:- "Detention can be by way of full-time imprisonment, home detention or periodic detention. In the ordinary course of events, the non-parole period will be three-quarters of the term of the sentence unless the court decides there are 'special circumstances', in which case it can impose a lesser non-parole period. Crucial changes introduced by the Sentencing Act 1989- the abolition of all remissions and that three-quarters of the term must be spent in detention unless there are special circumstances - are in no way changed by this or any other amendment. Truth in sentencing will remain. Clause 44(2) ensures that a court that varies the statutory ratio must record its reasons for doing so. Although identical in all respects with the 'minimum term' of the Sentencing Act 1989, the bill restores the term 'non-parole period'. This reflects what really happens in sentencing. The term of the sentence is the actual period the prisoner may spend in detention. The non-parole period is the minimum period they must serve before being eligible for release. The Sentencing Act 1989 tried in s.5(1) to change the way sentences of imprisonment were imposed by the courts. In theory, a court was required first to set a minimum term which must be served and then to add a period during which the prisoner could be released on parole. In practice, things were not quite so simple. The two-stage sentencing process has been described by the present Chief Justice of New South Wales as 'quite artificial'. The Law Reform Commission was similarly critical, noting:- 'The mere statement of a minimum term and additional term cannot effectively convey all the purposes of punishment. It is only once a head sentence has been set that the court can determine the minimum term, that is, the period which the offender must, in justice, serve in gaol.' (pp.179-180) Clause 44 implements this part of the Law Reform Commission's recommendations." 44 The approach I should now take is set out by s.44(1). Having found special circumstances, it is not open to me to increase the parole period and thus the total sentence to reflect them so that now the variation in proportion between the different components will require a balance having regard to the considerations referred to by the High Court in Power v. Regina (1974) 131 CLR 623 at 628; Bugmy v. The Queen (1990) 169 CLR 525 and Leeth v. The Commonwealth (1992) 174 CLR 455, remembering that any release on parole leaves the offender liable to return to serve the whole term. 45 It is not only to the length and prospects of the head sentence and the parole period I should have regard, but also to the necessity for the non-parole period adequately to reflect the criminality in all the circumstances of the principal crime and those taken into account and the offender's personal circumstances as affected by whether, because of his mental condition, Aboriginality and vulnerability he will serve the custodial portion of his sentence in circumstances more onerous than the general prison population. I accept that these considerations apply here. 46 Lee Dean Carroll, taking into account those additional offences, I sentence you to imprisonment for 12 years to date from 19 December 1996 with a non-parole period of seven years and six months. The earliest date on which you will be eligible for release on parole is 18 June 2004. 47 I direct these remarks be provided to the Corrective Services Department and to the Parole Board for consideration on the circumstances in which the offender will serve the custodial portion of his sentence and on what conditions and assistance should apply on his parole.

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