Regina v DN

LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 s21A

PARTIES : Regina (Crown) DN (offender)

FILE NUMBER(S) : SC 2007/00001528 (formerly 2007/420)

COUNSEL : P Cattini (Crown) A Haesler SC (offender)

SOLICITORS : Solicitor for Public Prosecutions (Crown) South East Aboriginal Legal Service (offender)

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

REMARKS ON SENTENCE 1 HIS HONOUR: This case is both appalling and baffling. The offender, DN, is a twenty-four year old man with no criminal history. On 9 July 2006, for no fathomable reason, he attacked his partner and her eleven year old son with a knife. She survived but the boy died. 2 He pleaded guilty in the Local Court to the murder of the boy, R, and to causing grievous bodily harm to his partner, SC with intent to murder her. He now stands for sentence, having maintained those pleas of guilty in this Court.

Facts 3 The facts are not in dispute. They are to be found in an agreed statement of facts and a lengthy statement to police by Ms C. The offences occurred at a house at Callala Bay, on the south coast of New South Wales, where the offender was living with Ms C, R and their one year old child, K. He and Ms C are K's biological parents, but R was the child of a former relationship of Ms C. 4 The offender and Ms C had been together for about four years. He was a heavy drinker and smoked marijuana regularly. However, their relationship appears basically to have been a good one. When he had been drinking they would argue, among other things, about money. The arguments were sometimes heated but he was never violent. He appears also to have had a good relationship with young R. 5 From early in 2006, Ms C observed that his drinking and use of marijuana increased. She described him as being "very anti-social", tending to withdraw to his bedroom when visitors arrived at the house. In her statement she recounted an incident sometime after Christmas 2005 in which he behaved strangely while he was drunk, and said something which suggested that he intended to commit suicide. She said that this was the only time he had "gone off the deep end…". After that incident, however, he appeared normal and they never spoke of it. 6 Also in 2006, she observed him to be depressed. She said that on some days "he just seemed to be down and you knew not to try to talk to him". A few days before the fateful day, 9 July 2006, he asked her if she thought he needed help for his depression. When she asked him why, he said that he did not want to do anything silly to himself. She replied, "Well, there's your answer…. You've got to be here for [K]." Unfortunately, he did not seek the help he may well have needed. 7 All that said, she could offer no explanation for the extraordinary events which bring him before this Court. On the day before the incident, 8 July, they had celebrated R's birthday. Throughout the day and into the evening of 9 July, a Sunday, nothing appeared to be out of the ordinary. The offender was drinking spirits, but he was not smoking because he had run out of marijuana. They did not argue, and he did not demonstrate any feeling of malice towards her or R. Ms C said in her statement that by the evening he was "fairly drunk" but he still seemed "just normal…". 8 At some stage they lay down together on a mattress in their bedroom. It seems that Ms C nodded off to sleep, because she has no memory of the offender getting up or leaving the room. Her next memory is seeing him entering the room, holding a knife. He stabbed her face, the point of the knife penetrating her cheek and entering her mouth, and also piercing her tongue. She heard him say, "Time to die, bitch". She struggled, and was stabbed several more times in the head and facial area. He kept saying, "It's time to die, just give up. It's time to go". His voice was not raised and to her he sounded "really calm". 9 Eventually he got up and left the room. She found her mobile phone, dialled 000 and reported that she had been stabbed. He came back to the room, took the phone from her and left again, calling out, "Just go to sleep". She did not see or hear him again. It was not until later at hospital that she found out what had happened to R. 10 Her call to the 000 service was received at 11.24 pm. Three minutes later a call was received from the offender. He told them where he was and said, "My fucking arsehole bitch". He then said that he had killed some people. Asked how many, he said, "Two." He then said, "Get your arse here now please. That's all I'm going to say." 11 Police and ambulance officers attended the house. They found Ms C in the bedroom. She was treated at the scene and then conveyed to Shoalhaven District Hospital, where she underwent surgery. In another bedroom they found R. He had two puncture wounds to the neck, his eyes were open but he was unresponsive. CPR did not revive him and he also was taken to the hospital. In yet another bedroom K was found, fortunately unharmed. 12 In Ms C's bedroom police also observed the word "Satan" written in blood on the wall above the bed. Subsequent fingerprint analysis confirmed that it was the offender who had done this. A blood stained knife was located on the bathroom floor, and forensic biological analysis later established that it had been used to attack both Ms C and R. 13 The offender was located in the carpark of a shopping centre at Callala Bay. Police who approached him saw that he had a large amount of blood on his t-shirt and on his face. He identified himself to them as "Pimp Deano". He said, "…You're not going to believe it. You think I'm bad, wait till you see them… I've just been stabbed in the head but I fixed those fuckers." Police observed that he had lacerations to the middle finger of his left hand and the palm of his right hand. He appeared to be intoxicated. He was arrested and conveyed in a police truck to Nowra Police Station. During the journey he was heard to say, "I just killed them fuckers." 14 R had lost a massive amount of blood. He was taken to an operating theatre, where an attempt was made to stem the bleeding by applying clamps. However, there was no evidence of ongoing successful cardiac function, and his life was pronounced extinct a little after 1 am on Monday, 10 July. Apart from the two puncture wounds to the neck, a number of abrasions were observed on his scalp. At autopsy, the direct cause of death was reported to be "multiple stab wounds to the head and neck". 15 Ms C's surgery was for the purpose of repairing multiple facial and left sided head lacerations, together with a laceration on the right side of her tongue and lip. The surgeon, Dr Martin Jones, noted her injuries in this way: Lacerations to right side of tongue, full thickness right side lower lip, left cheek starting from level of lateral canthus and deep injury down onto mandible and into submental tissues. Multiple full thickness scalp lacerations from 3 mm to 5 cm in length, some with deep sheer up to 6 cm. Few small superficial wounds to right hand on dorsum of fingers and left hand on palmer surface of fingers.

She is likely to require further surgery because of "facial nerve palsy".

Victim impact statements 16 I received victim impact statements by Ms C and by her parents. Those statements express eloquently their outrage and their grief at the loss of R, and the enduring effects of his senseless and untimely death upon their lives. Their pain is exacerbated by the fact that they remain at a loss to understand why the offender acted as he did. Sadly, SC went so far as to express guilt that she had brought him into R's life and had failed to protect the boy as a parent should. I cannot imagine how she could possibly have foreseen that the offender might harm him, and I am sure that no right thinking member of this community would suggest that she was in any way to blame. 17 Her mother also expressed concern that she and her husband had not seen "any problems" in the offender's relationship with R and had not been able to prevent what occurred. They, of course, are equally blameless. It is a testament to her generosity of spirit that she was able to add in her statement: I am sure that the [N] family is suffering in the same way. No doubt they have as many questions as my family do.

I have regard to these statements in accordance with established authority. It needs hardly be said that the mother and the grandparents of R have my deepest sympathy. 18 SC's statement goes on to deal with the offender's attack upon her and its lasting effects, physical and psychological. She has permanent scarring to her face and, as a result of the defensive wounds, to her hands. She suffers palsy to the left side of her face. She lacks feeling in her mouth and is unable to control it. She cannot smile and her speech has been slightly impeded. This has affected her self-esteem. In addition, she suffers from headaches and anxiety attacks. 19 She maintains regular contact with her general practitioner and has consulted a plastic surgeon about her facial damage. Whether further surgery should be undertaken remains to be seen. She has physiotherapy to help with the movement of her face, neck and shoulders. She also attends counselling on a regular basis.

Why? 20 I accept that the offender himself is unable to explain his violent behaviour and, indeed, that he has no memory of it. That was his account to Dr Olav Nielssen, forensic psychiatrist, who interviewed him in custody a few weeks after his arrest and again in March of this year. It is also what he wrote in letters to Ms C in August 2006, and what he said in evidence before me. 21 He has consistently maintained a gap in memory between watching a country music program on the television at home and later finding himself at the police station. He has no memory of attacking Ms C or R. Nor does he remember ringing the 000 service or behaving as he did when confronted by police in the shopping centre carpark. He recalls drinking heavily but not having smoked marijuana for several days. Unlike Ms C, he remembers that they had an argument, although he could not say how it started or what it was about. 22 To Dr Nielssen he denied any satanic interest, saying that he was not religious. He had tattoos on his body of a religious nature, some of which apparently had a satanic theme, but he said that they had no particular significance to him. 23 Dr Nielssen provided three reports, carefully analysing the history he had obtained from the offender and from other material supplied to him by the offender's solicitor. That history conveyed to him a longstanding pattern of abuse of marijuana and alcohol, including many amnestic episodes or "blackouts". The offender told him that his drinking was such that he became "a train wreck" and that, since he had become sober while in custody, he could see the extent of the damage it had caused him. Dr Nielssen thought it likely that he had been acutely intoxicated at the time of the offences, noting that his lack of memory of them was consistent with an alcoholic blackout. 24 The offender also told Dr Nielssen that he tended to become very "cranky and edgy" when he was unable to obtain marijuana, and that he dealt with the withdrawal symptoms by drinking heavily. In addition, Dr Nielssen concluded from the whole of the material that he was suffering a major depressive illness prior to the offences. In his final report, the doctor wrote: From the information available to me and the findings from two interviews of Mr [N] I am not able to offer any further advice to the court to explain Mr [N]'s uncharacteristic violence. As far as I can tell Mr [N]'s behaviour was due to a combination of the effects of his personality traits, chronic depression, the effects of chronic cannabis use and cannabis withdrawal, the effects of the rapid consumption of alcohol and something about the circumstances of the evening that appears to have triggered a violent rage. 25 The agreed facts record that at about 5pm on the day after the offender's arrest, 10 July, a blood sample was taken from him. Later analysis of that sample did not detect alcohol but did detect Delta-9-THC acid. In the absence of pharmacological evidence, it could not be said that that finding is inconsistent with his account, supported by Ms C's statement, that on 9 July he had been drinking heavily but had not smoked marijuana.

26 Notwithstanding his lack of any relevant memory, the offender has accepted responsibility for his crimes. So much is apparent from his early pleas of guilty. Moreover, it is clear that he is deeply remorseful. He expressed his contrition in no uncertain terms in the letters to Ms C to which I have referred. Among other things, he wrote, "I could not ever express the hate I have in myself for what has happened, for taking young [R]'s life". Throughout the letters he flagellated himself for his behaviour, sometimes in lurid terms. He expressed his regret for what he had done to Ms C herself, not only by his attack on the night in question but also through his abuse of alcohol and drugs over the period they had been together. Generally, he wrote that he deserved "the full punishment that's to come". 27 He repeated those sentiments in evidence, apologising to SC's family and, in particular, to SC. He said, "No words can describe how sorry I am …." He also said that what he had done was "absolutely wrong", and added, "There is no time in gaol that could make up for what I've done. I accept punishment. That's what I deserve." Such is his shame that for a significant period of time he would not allow his own family to visit him in custody. 28 His remorse was also demonstrated by his demeanour in court. The victim impact statements of Ms C and her mother were read to the court by a member of a victim support group who had been assisting the family. Her father read his own statement to the court. During those readings the offender was weeping and was obviously distressed. When he gave evidence he presented as a shattered man. He spoke quietly, but I observed him to be shaking and to become more and more distressed as the evidence progressed.

Background 29 Some explanation of the offender's drug and alcohol abuse and, perhaps, his propensity for depression is to be found in his background. He is an Aboriginal man, born in Dubbo. He has two older brothers. The family moved to the south coast when he was about five. It seems that both his parents were problem drinkers, and his mother was given to anxiety and depression. There were regularly incidents of domestic violence, including one in which his father broke one of his mother's ribs. Their relationship deteriorated over a long period and they separated towards the mid-1990s, when the offender was about eleven. 30 He maintained a close bond with his mother. He enjoyed music and learned to play the guitar. He had friends but tended to be something of a "home body". He left school during Year 10. He is an obese man and was heavy as a child. He was teased at school because of his weight. His early years of high school were in the aftermath of his parents' separation. His mother had to work at night and, as she had had little education herself, she could not help him with his schoolwork. It was at this time that he started using marijuana, which was readily available at school. He began drinking in his mid-teens. 31 After leaving school, he had some casual employment in the Nowra area, including some work on the CDEP scheme. He pursued his interest in music and became the member of a band. I received several references, including one from a CDEP supervisor, which portray him as a polite young man and a reliable worker. It appears that he has long lacked self-confidence because of his weight, and that he is introverted and has had difficulty in expressing his feelings to others. Importantly, it emerges from the whole of the material, including the references, that he has never been known to be violent or aggressive. 32 As I have said, on his own account and that of Ms C, he had had a good relationship with R. The boy had ADD and he told Dr Nielssen that sometimes he was "a bit of a handful", but there is nothing to suggest that he dealt with that problem violently or in any way inappropriately. It is clear that he is devoted to the little child, K. So much is apparent from Ms C's statement and from another letter which he wrote in prison. Since being in custody he has undertaken a number of TAFE courses and he aims to complete his secondary education.

Sentence 33 I have found this a most difficult sentencing exercise. The offender must be sentenced for two very serious crimes. The murder of R carries a maximum sentence of imprisonment for life and a standard non-parole period of twenty years. The attempted murder of Ms C carries a maximum sentence of imprisonment for twenty-five years and a standard non-parole period of ten years. 34 In all the circumstances, the murder of R does not call for the maximum sentence. The Crown prosecutor, very properly, did not suggest that it did. Nevertheless, it is a most serious crime, ameliorated only by the fact that, in all probability, the poor boy was unaware of what was happening to him. It is most likely, and was accepted by the Crown prosecutor, that he was asleep when he was attacked and never regained consciousness. The attempted murder of Ms C is also a serious crime of its kind, and its enduring effects upon her are obvious from the evidence. 35 The offences are the product of an entirely uncharacteristic outburst of violence by the offender. Such light as can be cast upon his behaviour emerges only from Dr Nielssen's reports. His depression, his intoxication and his withdrawal from cannabis provide some explanation for the level of his violence, but what triggered it remains a mystery. This, of course, is the most disturbing feature of the case and it raises the question whether the offender remains a danger to the community, requiring particular emphasis to be given to the protection of society in determining the appropriate sentences. 36 Dr Nielssen expressed a view about that matter also in his final report. He found no evidence of brain injury or psychotic illness, and concluded: With regards to his prospects of rehabilitation, it is difficult to make predictions far into the future. However, Mr [N]'s behaviour was in part due to depression and substance abuse which are conditions that are amenable to treatment. He did not report any criminal activity apart from drug abuse and he did not reveal any antisocial attitudes during the interview. He did express a high level of remorse and self-loathing, which were consistent with the presence of depression. He was thought to carry a significant risk of suicide. I believe he has reasonable prospects of rehabilitation provided he receives appropriate treatment and counselling. 37 I have given this matter careful consideration and have concluded that the offender should not be seen as posing a continuing threat to society. I am fortified in that view by the opinion of Dr Nielssen, a most experienced forensic practitioner. The offender is a man of prior good character with no criminal record and no history of violence. He has acknowledged his responsibility for the crimes from the outset, has pleaded guilty and has demonstrated his remorse. He has insight into the gravity of the offences, and has not attempted to put forward anything by way of excuse for them. The depression and substance abuse which appear to have contributed to his behaviour are able to be treated. 38 He needs to undergo that treatment in custody and, if necessary, upon his eventual release. It appears that he has re-established contact with his family and has their support. All in all, I think that his prospects of rehabilitation are good. Of course, he is entitled to rely upon his previous good character, his pleas of guilty and his remorse in mitigation of sentence. His pleas of guilty should be recognised for their utilitarian value, which is considerable, quite apart from their demonstration of his contrition. 39 I have taken into account the aggravating and mitigating factors under s21A of the Crimes (Sentencing Procedure) Act which are applicable to the case. They are apparent from what I have already said, and there is no need to recite them. The standard non-parole period for each offence is the period which should be set for a crime falling within the mid range of objective seriousness unless there are reasons for departing from it. Neither the Crown prosecutor nor Mr Haesler SC, for the offender, made any submission about where these offences fall within the scale of objective gravity. That is not an easy matter to decide, given that the circumstances in which they were committed are unknown. Nor is it easy to determine the significance of the offender's depressive illness for this purpose, but some weight must be given to it as a factor contributing to his criminal behaviour. 40 However, the fact remains that he snuffed out the life of a defenceless child. It must be accepted that the child did not suffer, in that he was not conscious at any relevant time. Nevertheless, I would place the murder somewhat above the mid range of objective seriousness, although falling well short of a worst case. I would reach the same conclusion about the attempted murder of Ms C, in the light of her description of what must have been a terrifying experience and of its serious effects upon her. 41 However, there is force in Mr Haesler's submission that the offender's pleas of guilty and his subjective case provide ample reason for departing from the standard non-parole periods. The Crown prosecutor, again very properly, did not submit the contrary. I accept, nevertheless, that those periods take their place in the sentencing process as guideposts or reference points. 42 Although I think it unlikely that the offender would commit another offence of violence, it is necessary that the sentences which I pass reflect the need for general deterrence. That factor is reduced somewhat because of his depressive illness, to which I think his abuse of alcohol and drugs was linked at the relevant time. There is a long and familiar line of authority that there is less need for general deterrence in sentencing a person whose culpability for a crime is mitigated by mental illness. Such a person is not a suitable vehicle for severe punishment as an example to others. That said, the extent to which the offender's mental illness contributed to his crimes is far from clear and it cannot afford him any marked degree of leniency. 43 Although the two offences arose from the same incident, they are distinct and serious crimes. There must be substantial, although not complete, accumulation of the sentences. I would reduce each sentence by twenty percent to reflect the utilitarian value of the offender's pleas of guilty. But for those pleas, I would have sentenced him to imprisonment for twenty-five years for the murder and fifteen years for the attempted murder. In recognition of his pleas, those sentences will be twenty years and twelve years respectively. 44 Mr Haesler submitted that I should find special circumstances and reduce the non-parole periods below the statutory ratio, even though the application of that ratio to the heavy sentences which I must impose would still leave a lengthy period of parole eligibility. It is obviously in the community's interest that the offender have the opportunity for release into society for a long period, subject to supervision and the sanction of parole, to foster his rehabilitation. However, in my view, that would be achieved by the application of the statutory ratio. Furthermore, the non-parole period for each offence must be sufficient to mark its gravity. 45 I must structure the sentences with an eye to their total effect, and in such a way as to reflect his overall criminality. The aggregate sentence must meet the competing requirements of denunciation and rehabilitation. The sentence which I have arrived at will involve an effective non-parole period greater than the statutory proportion, but I trust that it will serve both those ends. 46 The sentence for the attempted murder, which I shall pass first, will be imprisonment for twelve years with a non-parole period of eight years. The sentence for the murder, which will commence five years later, will be imprisonment for twenty years with a non-parole period of fifteen years. The aggregate sentence, then, will be twenty-five years with an effective non-parole period of twenty years. It will commence on the date he was taken into custody, 9 July 2006, and he will be eligible for release on parole on 8 July 2026. 47 [DN], for the offence of causing grievous bodily harm to SC with intent to murder her you are sentenced to a term of imprisonment comprising a non-parole period of eight years, commencing on 9 July 2006 and expiring on 8 July 2014, and a balance of term of four years, commencing on 9 July 2014 and expiring on 8 July 2018. For the murder of R you are sentenced to a term of imprisonment comprising a non-parole period of fifteen years, commencing on 9 July 2011 and expiring on 8 July 2026, and a balance of term of five years, commencing on 9 July 2026 and expiring on 8 July 2031.

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