The next morning the offender said -
"Last night (Dang) Hung and I went to the city and robbed somebody's handbag. Then Hung ran away and there was an undercover police [who] tried to hold me. And I stabbed him three times and...ran away."
7 At about 6.30 pm the offender eventually returned to his own home, where he lived with his parents and sisters, telling them that he had been to a friend's house for a party. On the following morning, police arrived and arrested him.
8 I consider that the admissions, made shortly after the offence and on the following morning were the product of feelings of shock, guilt, fear and remorse. Regrettably, however, they did not lead the offender to be candid either with his parents or the police.
9 In a lengthy interview, the offender denied having been with Dang on the day in question and having been present at any robbery of a woman's handbag. He said that he had smoked marijuana during the day on a number of occasions. The police informed him that Dang had told them of his involvement in the crime but he responded that Dang was a liar. The police then showed him the murder weapon which had been found near the scene of Mr Hammond's stabbing. The offender denied that the knife was his or that he had ever seen or owned a knife like it. He was shown a number of items that had been taken from his home when he was arrested which were stained with blood. He said the blood was his. (Later DNA testing showed that this was the truth.) The offender was told about the statements which had been obtained from persons to whom he had spoken on the night of 25 April. He denied making any of the admissions attributed to him and suggested, in respect of one informant, that he had lied to protect Dang. The offender pretended that there was a person, whom he declined to name, who could provide an alibi for him.
10 Having regard to all the circumstances, I am satisfied that the offender's lies to the police were the result, certainly, of a desperate desire to escape punishment, but also of deep shame, and the inability to disclose to his family and accept for himself that he had committed such an appalling crime.
11 In fact, the case against the offender was overwhelming because of the statements he had himself made on the night in question, some of which I have set out, and he was, in due course, charged with Mr Hammond's murder.
12 On the evening of his arrest, the offender was visited by members of his family but continued to deny his guilt. However, about a week later, whilst he was on remand awaiting committal proceedings, he confessed tearfully to his sister that he had, indeed, killed Mr Hammond. In due course, the offender was committed for trial and, when arraigned in this Court, as I have mentioned, pleaded guilty.
13 It appears that the offender had been a heroin addict for about three years but, at the time of the crime, was withdrawing. He had been prescribed a number of drugs for the purpose of reducing the withdrawal symptoms. The Director of the Clinical Forensic Medicine Unit within the New South Wales police force, Dr Moynham, confirmed that these drugs were prescribed to assist heroin addicts when withdrawing from heroin abuse. He considered that one of the drugs, whether with or without heroin, could cause mood changes resulting in a "loss of self-restraint to the extent that a person may carry out actions which he would not carry out if these substances were not in his blood [and that]...withdrawal from a narcotic may also cause similar behaviour". I have been informed by counsel for the offender that, before the offender could be advised appropriately as to his plea, it was necessary to consider whether any defence arising out of this information was appropriate. In due course, as I take it, it appeared that no such defence was available and, accordingly, the offender pleaded guilty.
14 The offender was psychiatrically assessed by Dr Samir Benjamin, who considered that the offender had suffered from heroin dependence and poly-substance abuse for about three years but there was no evidence suggesting any psychotic or mood disorder or an intellectual handicap. Although the offender's parents came to know of his drug addiction and attempted to help him by arranging for him to enter detoxification programmes on a number of occasions, he did not successfully complete them. Some days before the offence he had commenced withdrawing again, with the support of his family. Withdrawal symptoms can be very painful and the offender lapsed on the day in question using cannabis and also, he claimed, heroin. Dr Benjamin thought it possible, however, that the offender's mental state may have been "somewhat compromised" because of the drugs which he ingested which, "could have diminished his ability to exercise control and act rationally resulting in irrational and aggressive behaviour". Dr Benjamin pointed to the well-known effects of higher levels of arousal, irritability and agitation associated with drug intoxication and withdrawal.
15 This material and the circumstances as a whole persuade me that the offender stabbed Mr Hammond as an impetuous and impulsive response to being apprehended and that he may not have done this had he been unaffected by drugs. Although his drug addiction does not reduce the offender's responsibility for committing this grave crime, it is relevant to weighing the prospects of rehabilitation, which must always be regarded as an important factor in sentencing any young person.
16 The offender is of Vietnamese descent but was born in Japan and is presently twenty-one years of age. The family migrated to Australia when the offender was two years old. His parents have worked hard to provide a good home for the offender and his three sisters. The offender did very well at high school until, at the age of seventeen, he became involved with a group of friends who, amongst other things, were experimenting with drugs. He told his father that he used heroin only occasionally at first and thought, if he did this, he would not become addicted. However, after six months he was addicted. His studies became adversely affected, he truanted from school. When he left school in year 12 he obtained some part-time, unskilled work. When he was nineteen he started using cocaine as well as heroin. The cost of his habit was about $900 a day. He said he supported his habit by selling to others. He almost certainly stole from his family. I do not regard it as in any way reducing the offender's culpability, but this criminal behaviour is the inevitable result of the black market in drugs created by prohibition. There is no doubt that, when his parents became aware of his drug problem at the end of 1998, they did everything that they could to help him to quit, but to no avail. Although the offender has caused his parents and his sisters enormous anguish and great shame, they have been regularly visiting him in gaol whilst he is on remand and I have no doubt that their continued support for him will be a very material factor in his eventual rehabilitation.
17 The offender told the Probation and Parole officer that at the time of the offence he was under the influence of drugs but added without prompting, "I don't want people to see me blame the drugs for the offence". I...[am] responsible for this and I have to accept the punishment that goes with it. No matter what I do, this man's life cannot come back".
18 I should say something about the deceased. Mr Hammond had served in the Royal Australian Navy for some years, including active service in the Persian Gulf during the Gulf War. During his career he received two Captain's Commendations, the first for "selflessly giving of his own time to assist a community in need" during the Newcastle earthquake emergency and in fighting bushfires as a volunteer and the second, from the commanding officer of HMAS Canberra, which commended him for his "outstanding professionalism, efficiency and loyalty..." An act of instinctive, selfless courage led to his death. He leaves a widow and a two-year old daughter. His parents have lost their son. The intense grief of his family has been expressed eloquently in the Victims' Impact Statements that have been placed before the Court.
19 As the offender's own sister said to him at the time he confessed his guilt to her in prison: "A good man has been murdered. His wife is without a husband and his daughter is without a father". Those stark words sum up an immeasurable grief and pain and anger, not only for Mr Hammond's family but also for that of the offender. The purpose of these proceedings is, fundamentally, to apply the criminal law to the measurement of punishment to offenders. So far as is possible that process must be objective and dispassionate. But it is nonetheless appropriate that I should acknowledge the dreadful loss that John Hammond's death has caused to his family and, indeed, to the wider community.
20 As I have said in other cases, however, by permitting Victim Impact Statements to be received in a hearing such as this, the law does not thereby place them to be weighed in the scales of justice. I respectfully agree with and adopt the careful reasoning of the Chief Judge at Common Law in R v Previtera (1997) A Crim R 76 at 85 ff as to why this must be so. The loss of a life is the gravest injury known to the criminal law. Accordingly, it is not made any more serious because the victim's death is the cause of pain or grief to others, however intensely felt. It would significantly undermine the moral standards essential to the rule of law if the life of one person were to be regarded as more or less valuable than the life of another or the killing of one person as more grievous than the killing of another, because of their personal or social circumstances. All right-thinking people would accept that it would be completely wrong to take one day from an otherwise appropriate sentence for an offence which resulted in death because the deceased was selfish, obnoxious, cowardly and without friends or family to grieve for him or her. By exact parity of reasoning, it cannot be right to add a day to an otherwise appropriate sentence because the deceased was generous, brave, loved and surrounded by friends and family. If this were not so, counsel for an offender whose actions caused the death might rationally submit that, as the deceased was of the former character, the crime was less grave and the sentence should be more lenient and the Crown prosecutor, by referring to a grieving family, submit the contrary. The virtues or vices of the deceased, the extent of his or her social connections and whether the death caused grief or was simply unnoticed by the indifference of the uninvolved, would then become the subject of evidence and argument. The law will neither value a life nor punish a death by such a demeaning process. Moreover, the worth that the law ascribes to the life which has been lost is a reflection of that same sense of reason and humanity which requires valuing also the lives of the persons who come to be sentenced.
21 In Veen v The Queen (No 2) (1988) 164 CLR 465, per Mason CJ, Brennan, Dawson and Toohey JJ said (at 476) -
"...sentencing is not a purely logical exercise and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions..."
22 In dealing with offenders, the Court, as I have said, must remain objective and dispassionate. All the relevant facts must be carefully weighed. The circumstances of the crime include not only the result but also the events which gave rise to it, the intentions of the perpetrators, their personal characteristics and attributes and the various explanations for their criminal behaviour.
23 The courts have long held, and it is the law, that prospects of rehabilitation and reform are especially important in respect of young offenders, not only for their own sake but also in the public interest. For this reason, the sentence should "[preserve] a proper opportunity and encouragement for rehabilitation": Wood CJ at CL, R v Hearne [1999] NSWSC 605 at 77. There is reason here for thinking that the offender's rehabilitation prospects are good. Although the significance of this factor diminishes the nearer the offender is to adulthood (Nguyen, unreported NSWCCA 14 April 1994) and when the offender conducts himself like an adult and commits a particularly serious crime (Tran, unreported [1999] NSWCCA 109), I consider it to be important in this case.
24 In R v Petroff (unreported, NSWSC 12 November 1991) Hunt J (as he then was) said, when dealing with a determination under s 13A of the Sentencing Act 1989 -
"Capital punishment has been abolished and (except in extraordinary cases...) the law does not regard itself as permitting a slower and more painful death by locking away the murderer and throwing away the key. In addition to retribution - and, of course, deterrence - the purpose of punishment is also to reform the offender as far as possible..."
25 As Allen J said in R v Crump (unreported, NSWCCA, 30 May 1993) -
"It is the common experience of judges who have had to consider section 13A applications to note the remarkable effect which imprisonment for a decade or more so often has upon young offenders - notwithstanding how brutally and callously they acted when they committed the crime or crimes. Time and again one wonders: 'how could this apparently well adjusted applicant be the person who committed such a crime?' Gone is the brashness. Gone is the bravado. Spent is the passion. Young offenders can change so much during a very long time in gaol as to present almost as an entirely different sort of person."