Director of Public Prosecutions v Newman
[2023] VSC 425
•27 July 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MILDURA
CRIMINAL DIVISION
S ECR 2023 0035
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| DAEL JOHN NEWMAN | Accused |
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JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 June 2023 |
DATE OF SENTENCE: | 27 July 2023 |
CASE MAY BE CITED AS: | DPP v Newman |
MEDIUM NEUTRAL CITATION: | [2023] VSC 425 |
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CRIMINAL LAW — Sentence — Reckless murder — Cause injury recklessly — Murder standard sentence offence — Plea of guilty at the earliest opportunity — Cooperation with police — Offender stabbed occupant of house during confrontation — Property known for holding drugs — Offender entered the house with the aim of stealing drugs and money — Offender is a Torres Strait Islander person — Very strong Bugmy considerations — Some Verdins considerations — Total effective sentence of 21 years with a non-parole period of 16 years — Sentencing Act 1991 (Vic) ss 5, 5A, 5B, 6AAA, 18 – Crimes Act 1958 (Vic) ss 3, 18.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Gibson KC | Office of Public Prosecutions |
| For the Accused | Mr R de Vietri | KPW Lawyers |
HER HONOUR:
Dael John Newman, you have pleaded guilty to having murdered David Gaskell (‘Mr Gaskell’) and to having caused injury recklessly to Karen Lyons (‘Ms Lyons’).[1]
[1]Contrary to s 18 of the Crimes Act 1958.
The maximum sentence for murder is life imprisonment[2] and the crime of murder is a standard sentence offence.[3]
[2]Crimes Act 1958 s 3(1)(a).
[3]Crimes Act 1958 s 3(2)(b). The standard sentence scheme applies in this case because the offending occurred after 1 February 2018. The standard sentence for murder is 25 years’ imprisonment. Murder is also a category 1 offence, which means I must impose a term of imprisonment, see s 5(2G) of the Sentencing Act 1991 (‘the Act’).
The maximum sentence for causing injury recklessly is 5 years’ imprisonment.[4]
[4]Crimes Act 1958 s 18 (level 6 imprisonment).
The offences took place at the home that Mr Gaskell and Ms Lyons shared in Manangatang, near Swan Hill, on the evening of 30 March 2022. Mr Gaskell was aged 58 and Ms Lyons was aged 42. Mr Gaskell had been in a long-term de facto relationship with Ms Lyons at the time of these events.
At the plea hearing, the Crown tendered an Amended Plea Opening[5] and a number of Victim Impact Statements.[6] The Crown also tendered an outline of prosecution submissions,[7] a table of comparative cases,[8] sentencing remarks from a previous County Court sentence imposed on you in 2007,[9] photos depicting the finger and thigh injuries incurred by Ms Lyons,[10] and photos of injuries you incurred when the victims’ dogs mauled you in the course of your offending.[11]
[5]Exhibit P1, ‘Summary of Prosecution Opening dated 13 April 2022’.
[6]Exhibit P3, ‘Bundle of Victim Impact Statements: Daryl Hoarse, Denise Gaskell, Frank Gaskell, Karen Lyons, Matthew Downing and Pam Gaskell’.
[7]Exhibit P2, ‘Crown Sentencing Submissions dated 25 May 2023’.
[8]Exhibit P4, ‘Table of cases: sentences imposed in standard sentence murder cases’.
[9]Exhibit P5,‘Reason for Sentence of his Honour Judge White dated 4 April 2007’.
[10]Exhibit P6, ‘Photograph from exhibit 61, image 040423, being an image of the right finger of Ms Lyons and the extent of the laceration to the finger’; and P7, ‘photograph drawn from exhibit 26 photo IMG_0006 showing injury to Karen Lyons’ upper left thigh’.
[11]Exhibit P8, ‘Photographs of Mr Newman’s injuries’.
Mr de Vietri, who represented you at the plea, tendered the psychological report of Simon Candlish dated 18 May 2023 (‘the Candlish report’),[12] an outline of defence submissions for plea dated 30 May 2023,[13] and the police record of interview relating to the offending.[14]
[12]Exhibit D1, ‘Psychological report by Mr Simon Candlish dated 18 May 2023’ (‘Candlish Report’).
[13]. Exhibit D2, ‘Outline of Defence Submissions for Plea dated 30 May 2023’.
[14]Exhibit D3, ‘Record of Interview (two parts) 4 April 2022’.
You were aged 41 at the time of the offending, and you are now aged 42.[15]
[15]Born 13 March 1981.
You and your partner Taylor Dawson[16] were living together in Albury. Brodie Burton,[17] who was a contact of Taylor Dawson, was also living in Albury. I will hereafter refer to Brodie and Taylor by their first names for convenience. Brodie was a friend of Taylor’s step-father, Mr Williams, and would buy cannabis from him.
[16]Aged 26.
[17]Aged 36.
On the morning of 29 March 2022, Brodie went to Mr Williams’ house in Albury looking to buy cannabis. Mr Williams did not have any, so he told Brodie he would ask Taylor. That afternoon, Brodie was still trying to get hold of some cannabis and visited the home you shared with Taylor. You, Taylor and Brodie then reached an agreement whereby Brodie would drive the three of you to Manangatang to buy some cannabis. You were to pay for the petrol and to give Brodie some free cannabis if he drove you and Taylor in his car.
Mr Williams claimed in his police statement that before you left you told him that you were going to do a ’rip’ and steal some drugs from someone near Swan Hill and that you had stolen five pounds of cannabis from the same house two months earlier, when no one was home.
Brodie, Taylor and you left Albury at about 5.30pm on 29 March 2022 to drive to Manangatang, as arranged. Just after midnight, Brodie’s car broke down 70 kilometres from Swan Hill, and a tow truck had to be called. The Swan Hill Towing Company arranged for Brodie’s car to be conveyed to the Paddle Steamer Hotel, in Swan Hill. Brodie, Taylor and you were also taken to that location.
As a result of the trouble with Brodie’s car, the three of you decided to hire a car from Swan Hill Hire. Ultimately, at around 4.00pm on 30 March 2022, Brodie hired a white Hyundai, with Taylor listed as the secondary driver.
The three of you then left Swan Hill in the hire car and arrived at Manangatang soon after 5.00pm. The car was driven to the vicinity of Mr Gaskell’s premises in Manangatang and parked nearby. The three of you sat in the car and smoked some cannabis together. Brodie then waited in the car while you and Taylor went for a walk. Upon returning to the car, the three of you left Manangatang and drove towards Swan Hill, but had to turn back when Taylor realised that she had misplaced her phone during the walk. Between 7.30pm and 8.00pm, Taylor collected her phone from the Manangatang Pub, and the three of you then drove on to Nyah, where you stopped for food and drinks, before returning to Manangatang.
At about 9.00pm, Taylor was the driver of the hire car. She parked opposite Mr Gaskell’s address on a grass verge next to several silos, and left the car engine running. Brodie was seated in the front passenger seat, beside Taylor. You got out of the back seat of the car wearing a hooded jumper, with the hood pulled over your head and your face masked by the use of an adapted T-shirt. You later claimed to police that you had covered your face ‘just in case he did see me’.[18] You were carrying a bum-bag and a backpack and had a taser with you for use, if needed.
[18]Transcript of Record of Interview of Dael Newman on 2 April 2022, Q and A 281.
You had been to Mr Gaskell’s address about two months earlier and committed a burglary and theft of cannabis when no one was home. On that occasion, you had broken in through the kitchen window. You noticed that the window had not been fixed since your last unlawful entry. You therefore climbed through the same broken window into the kitchen of the house, intending to steal money and cannabis.
Mr Gaskell and Ms Lyons were at home, watching television, when you broke in. Hearing noises caused by your entry to the house, Mr Gaskell went to investigate and was confronted by you in the kitchen. He began yelling at you to get out of his house, and an altercation ensued between you and Mr Gaskell.[19] Mr Gaskell’s dogs were barking and biting at your legs. You attempted to use your taser on Mr Gaskell, but it did not work. You seized a knife from the kitchen bench and were swinging it at Mr Gaskell, stabbing him a number of times to the upper body.
[19]Exhibit P1, Summary of Prosecution Opening dated 13 April 2022 [28].
At the time you wielded the knife, you foresaw that really serious injury would probably be caused to Mr Gaskell. This conduct constitutes the charge of reckless murder.
Having attacked Mr Gaskell with the knife, you ran from the kitchen towards the front door, where you saw Ms Lyons attempting to use her phone. You pushed her and tried to grab the mobile phone from her right hand. In the process of doing so, you slashed her right middle finger and left thigh. This conduct constitutes the charge of recklessly causing injury. You did not succeed in getting the phone from Ms Lyons, and instead ran from the front door through the lounge and to the kitchen again, where you stole $200 from the kitchen bench. You then left the premises via the front door and ran across the road to the waiting hire car.
Once in the car, you yelled at Taylor to drive away and said you did not get anything from inside the house. Brodie overheard you telling Taylor that you had stabbed ‘him’, that you had stabbed ‘them both’, and that you had stabbed the guy in the shoulder and the neck.[20]
[20]Exhibit P1, Summary of Prosecution Opening dated 13 April 2022 [31].
Meanwhile, Ms Lyons had run next door to seek help from a neighbour. The neighbour, Matthew Downing, came to the aid of Mr Gaskell, but was unable to save him. Paramedics attended soon afterwards but could not resuscitate Mr Gaskell and he died at the scene.
I observe that at the time he was attacked by you, Mr Gaskell had only limited lung function due to recent cancer treatment. He had been attached to an oxygen machine[21] while watching television before getting up from the chair to investigate. However, the Crown do not allege that you were aware of Mr Gaskell’s condition.
[21]Mr Gaskell had been wearing a mask attached to an oxygen bottle, but was not suggested to be still wearing the mask when he encountered Mr Newman in the kitchen.
You were arrested in relation to the offending on 4 April 2022 and participated in a record of interview. In that interview, your explanation for the offending was that you were desperate and broke, and needed to get your partner home for her methadone dosing. You said you hatched a plan to go and rob a drug dealer, but it backfired. You said ‘I was just supposed to grab the dope and money out of the fridge and that was all it was going to be, a quick snatch and grab’.[22] You said that you knew there would be a lot of money and dope in the house. You said you had a taser on you but it did not work and you claimed that Mr Gaskell had you by the throat and ripped your shirt, that the dogs had hold of your legs, and that you had grabbed whatever you could from the bench and started ‘swinging it’. You said you thought it was a steak knife. You claimed that you tried pushing Mr Gaskell’s partner out of the way because she was blocking the front door and that you did not know if you had actually hurt her.
[22]Transcript of Record of Interview of Dael Newman on 2 April 2022, Q and A 28.
You said that you dropped the knife in the front yard of the house on your way out. However, I note that the knife you wielded was never recovered. You admitted to later burning the clothes you had been wearing during the offending.
You told police that you had no other connection with Manangatang, apart from having gone to the same premises in January of the same year when you stole five pounds of dope from within the house. It was accepted by the Crown that there is no evidence that you had ever met Mr Gaskell or Ms Lyons prior to this offending.
The pathologist, Dr Heinrich Bouwer gave the cause of death as a stab wound to the chest leading to significant blood loss.[23] He noted three major stab wounds, being:
[23]Exhibit P1, ‘Summary of Prosecution Opening dated 13 April 2022’ [44].
(a) a single-edged stab wound to the left lateral chest wall measuring 3 cm in width, extending into the chest through the ribs, which were fractured, and into the left lung and hilum, with an associated left sided haemopneumothorax;
(b) a stab wound to the left jaw with an associated jawbone fracture; and
(c) a stab wound to the left elbow.
There were also minor incised injuries to the left ear, behind the left ear and on the left arm. Therefore, there were more knife injuries than you acknowledged in your police interview.
The physical injuries caused to Ms Lyons were fortunately not severe. I have viewed photographs of those injuries which show a cut to Ms Lyons’ right middle finger[24] and a cut to her left thigh,[25] neither of which required stitches. The injuries were agreed by Mr Gibson to be at the lower end of the scale of physical injuries.
[24]Exhibit P6 ‘Photo from exhibit 61, image 040423, being a photograph of the right finger of Ms Lyons and the extent of the laceration to the finger’.
[25]Exhibit P7 ‘Photograph drawn from exhibit 26 photo IMG_0006 showing injury to Karen Lyons’ upper left thigh’.
Police examination of Mr Gaskell’s house uncovered a large quantity of cash. There were also several assorted bags of green vegetable matter in the refrigerator, along with further quantities of green vegetable matter in one of the bedrooms.[26]
[26]Exhibit P1, ‘Summary of Prosecution Opening dated 13 April 2022’ [41].
You have been in custody since the day of your arrest on 4 April 2022. I was informed that plea discussions took place throughout the later part of 2022. When you were committed to this Court on 1 March 2023, a plea of guilty was indicated. You were formally arraigned and pleaded guilty to the current indictment on 16 March 2023 at the first directions hearing in this Court. Therefore, your plea can be regarded as having been made at the earliest stage.
I have received and taken into account the victim impact statements filed in this matter.[27]
[27]Exhibit P3,‘Bundle of Victim Impact Statements: Daryl Hoarse, Denise Gaskell, Frank Gaskell, Karen Lyons, Matthew Downing and Pam Gaskell’.
As well as being a primary victim of physical injuries, Ms Lyons lost her long-term partner, Mr Gaskell, who was known to her as ‘Dave’. In her Victim Impact Statement, she described how your criminal actions have impacted every part of her life. She said that she and Dave moved to Manangatang about 10 years ago, and had shared a happy life until this event. She was unable to return to the house which she shared with Dave, after Dave’s death, and is haunted by memories of what occurred there. She does not feel safe anywhere now.
Neighbour, Matthew Downing knew the victims as Dave and Kaz. Despite Matthew’s brave actions in going to the assistance of Dave and attempting to provide first aid he remains troubled by traumatic memories of what happened in the house next door.
Pam Gaskell is the mother of Mr Gaskell and she found his death and the aftermath of his death simply overwhelming.
Frank Gaskell is the brother of Mr Gaskell and he said he could not find the right words to describe the impact on him and his family of the grief and loss caused by Mr Gaskell’s murder. He had hoped to improve his relationship with his brother and was distressed not to have had that chance. Denise Gaskell, Mr Gaskell’s sister-in-law, also described the terrible effect on the entire family of his death.
Daryl Hoarse, Mr Gaskell’s uncle, had a close relationship with Mr Gaskell and supported Pam Gaskell, in the aftermath of the murder by organising funeral arrangements and notifying other family members. He misses his nephew greatly.
Mr Gibson submitted that although you have pleaded guilty to reckless murder, based on foresight of the probability of really serious injury being caused, reckless murder need not be regarded as less serious than intentional murder.[28] It was also put that regardless of how the case for murder is put, this was a serious example of murder and your moral culpability for the offence should still be regarded as being of a moderately high order. The offending occurred during a targeted and premeditated trespass into the victims’ home, aimed at stealing drugs and money. Both victims were entitled to feel safe in their home. Given that there was a car in the driveway and the television was on, it should have been apparent to you that someone was home.
[28]Exhibit P2, ‘Crown Sentencing Submissions dated 25 May 2023’ [16]-[25], citing Barrett v The Queen (2010) 27 VR 522.
Whilst it is not alleged that you brought the knife into the house with you, Mr Gibson argued that you must have been prepared for the risk of confrontation, given that you came equipped with a taser, and had disguised your appearance using a modified T-shirt as a face covering. Furthermore, even if the stabbing of Mr Gaskell and the assault on Ms Lyons resulted from sudden panic, the fact remains that you stabbed Mr Gaskell to numerous parts of his body. Mr Gibson submitted that it was also relevant that Mr Gaskell was vulnerable due to recent cancer treatment, although it is not alleged that you knew this.
Regarding your motivation for your crimes, Mr Gibson invited the Court to view with scepticism your claim of urgently needing money because Taylor had to get home for her methadone dosing.[29]
[29]Mr Gibson noted that this was inconsistent with the way Ms Dawson presented according to witness statements and CCTV.
I cannot be satisfied beyond reasonable doubt that you noticed that the house was occupied when you broke in, but I accept the Crown submission that you entered Mr Gaskell’s house, prepared for the risk of confrontation, having disguised yourself and having taken a taser with you. I also do not think there was any urgent need for money driving the decisions you made on 30 March 2022.
In response to the Crown’s submissions regarding objective gravity, Mr de Vietri submitted that reliance by the Crown on a case of reckless murder was relevant to assessing your state of mind, and that the Court should evaluate the full circumstances of the offending, including the lack of premeditation in respect of the actual stabbing of Mr Gaskell. I accept that submission.
Mr de Vietri highlighted the answers given in your police interview which showed the escalating commotion that ensued when Mr Gaskell and his dogs attempted to intercept you. It was submitted that you did not go into the house with the murder weapon, and that the unexpected manner in which events unfolded prompted you to react impulsively. Mr de Vietri also noted that the offending was of a relatively short duration when considered alongside many other cases of murder. These factors were relied on as reducing the objective gravity of your offending.
In considering the competing submissions about objective gravity, and taking into account what you said in your record of interview, I accept that your original aim was, to use your words, to carry out ‘a quick snatch and grab’ from a household that you believed was holding drugs. I therefore accept that the stabbing of Mr Gaskell was impulsive and reactive to a degree. However, I am also persuaded by the evidence that when you broke in, you had disguised yourself and brought a taser in case of any potential confrontation. I also observe that Mr Gaskell was fully entitled to seek to eject you from his home. You have not been charged with a specific offence in relation to the home intrusion,[30] but that aspect of your offending has general contextual relevance.[31]
[30]And you will not be sentenced as if you had.
[31]The Defence referred to the cases of DPP v Cooper [2018] VSCA 21 and Williamson v The Queen [2019] VSCA 138 in characterising the objective gravity of the offence. It is worth noting, as the Defence pointed out, that these cases pre-date standard sentencing and that there are some distinctive differences in the offending in Williamson and Cooper to the present matter. For example, Williamson and Cooper concerned joint offending committed by two offenders who went into the victim’s home armed and aware that the elderly victim, who was known to Williamson, would be asleep in bed. The victim was tied up before he was fatally stabbed 13 times by Cooper, who had been falsely told my Williamson that the victim was a paedophile. Each offender in that case was convicted of murder, aggravated burglary and theft.
Despite the serious nature of your offending in this case, Mr Gibson acknowledged that Bugmy factors[32] could be relied upon to reduce your moral culpability to a moderate degree. The Crown did not offer any comment in relation to the application of the first, third or fourth Verdins principles,[33] noting their concession as to Bugmy factors, which already allowed for some reduction of moral culpability.
[32]Exhibit P2, ‘Crown Sentencing Submissions dated 25 May 2023’ [26]; Bugmy v the Queen (2013) 249 CLR 571.
[33]R v Verdins [2007] VSCA 102 [32].
Mr Gibson submitted that the fifth Verdins principle could apply to you since the Candlish report supports a finding that your sentence may weigh more heavily on you than on a person of ordinary health.[34] However, it was submitted that your diagnosis of a moderately severe personality disorder could only give rise to a moderate degree of mitigation.
[34]Due to your psychological condition at the date of sentence.
Your personal history was described by Mr de Vietri in comprehensive written and oral submissions. It was also set out in the Candlish report.
Your father is a Torres Strait Islander man born in 1960, who had a strong connection to his culture. Unfortunately, your earliest memories of your father are of him being abusive and threatening towards you. You also recall seeing your father in the police cells when you were 10 years old.
Your mother was born in England and your parents were both 21 years old when you were born. Your parents separated when you were only 2. Your early childhood was extremely bleak. You felt like you were ‘a little black kid’ who was ‘shunned.’[35] Your mother married your step-father when you were five, and went on to have two daughters from that union. Your stepfather was an alcoholic who was verbally and physically abusive towards you. He favoured your half-sisters over you and sometimes punished you for their misbehaviour.
[35]Exhibit D1,Candlish Report [37].
Between the ages of 5 and 10, your step-father subjected you to severe physical abuse, and you also witnessed serious violence visited by him upon your mother such as stabbing her hand into the wall and forcing you to watch while he assaulted her. Your mother also had substance abuse issues. You have scant affection for your mother due to the experiences of your childhood. The acts of physical violence you endured included being whipped with jug cords and tree branches and being thrown against hard objects such as a wardrobe. You felt that living in your home was hell and wished someone would come and save you. The emotional deprivation and abuse you suffered as a child left you feeling abandoned, unloved and forgotten.
As a result of this upbringing, you were frequently in trouble at school and progressed poorly, underperforming in basic reading and writing. You also expressed the feeling that you were ‘not black enough to be black and not white enough to be white’.[36] You became disengaged from school very early in life. At the age of eight, you were exposed to the trauma of discovering your grandmother’s body after she had taken her own life. Your family life further disintegrated after your mother divorced your step-father, and moved the family to Adelaide.
[36]Outline of Defence Submissions for Plea [11].
You were expelled from school at the age of 14 and ran away to Darwin where your biological father lived. Unfortunately, your father was a bad influence on you. He grew and smoked cannabis, was unemployed and was rarely home. On the occasions when he was home, he was abusive towards you. After three months of living with your father, you began living on the streets. You quickly fell in with other young people involved in drugs and crime. By your mid-to-late teens, you were already using heroin. You began committing crimes in order to fund your addiction.
After a while, you returned to live with your mother in Adelaide, but by then your drug problem had become severe. At 18, you had a short-term relationship which led to your first daughter being born when you were only 19. You do not have contact with your daughter from that relationship.
You have had little by way of stable employment, apart from occasional jobs picking fruit, labouring or working in abattoirs.
After being released from prison in 2009, you moved to Albury, New South Wales, where you met Taylor and obtained full-time work as a labourer. Your relationship with Taylor produced a son and a daughter, although both children have been taken into care due to parental mental health issues and drug abuse. It seems that your son[37] was removed from your care at birth, whereas you and Taylor raised your daughter[38] for three years with the help of Taylor’s mother, until the pair of you succumbed to heavy drug use again.
[37]Born in 2011.
[38]Born in 2014.
Although the records reflect a gap in your offending between 2007 and 2017, by 2017, around the time your daughter was removed into care, your lifestyle had deteriorated. You were arrested in that year for breaching an Apprehended Violence Order (‘AVO’), that had been taken out for Taylor’s protection. In 2017 and in 2020 terms of imprisonment were imposed on you. When you were released from prison you reconciled with Taylor. You were still in an intimate relationship with Taylor at the time of the current offending.
Since being remanded in custody for the current offending, you have maintained contact with your children by telephone.
It is clear from the report of psychologist Simon Candlish[39] that you experienced extreme disadvantage as a child, including neglect, instability, exposure to drugs and alcohol, and physical and emotional abuse. These factors had a significant impact on your development, the effects of which have carried through into adulthood.
[39]Exhibit D1,Candlish Report.
Mr Candlish stated that there appears to be a ‘strong connection’ between your exposure to violence and physical abuse, limited anger-regulation modelling from your caregivers, and your ‘aggressive behaviour towards others as child.’[40] These childhood difficulties are linked to the development of ‘problematic personality traits’, including that you ‘lacked self-direction, a sense of identity and … had a history of poor interpersonal functioning’,[41] which became more entrenched in adulthood. This impacted your ability to think about the consequences of your actions, and to manage your mental health and substance abuse issues. It also impacted your compliance with medication. Related to this is a degree of irresponsibility and a lack of concern for others.
[40]Exhibit D1, Candlish Report [149].
[41]Exhibit D1, Candlish Report [152].
Noting your struggles at school, Mr Candlish suggests that you may have unassessed cognitive deficits. Your experiences at home and at school undermined your development, and fortified your hostility towards others, as well as your own feelings of inadequacy.
Mr Candlish states that your ‘unaddressed personality issues’, which include ‘detachment, poor empathy, impulsivity, anger dysregulation, poor problem-solving and consequential thinking’[42] underpin your risk for violence, along with your interrelated substance abuse issues and unstable lifestyle.
[42]Exhibit D1, Candlish Report [155].
On the basis of the personal history put before the Court and the Candlish report, I accept that Bugmy considerations are very strongly made out in your case. Your deprived early life has left you with lifelong psychological and emotional impairments and limited social and occupational skills and resources. While you are not to be sentenced more leniently simply because you are Indigenous, this forms part of the totality of your personal circumstances.[43] As mentioned by the High Court in Bugmy, because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving ‘full weight’ to an offender’s deprived background in every sentencing decision. I also accept that your childhood exposure to extreme violence and alcohol abuse helps explain your recourse to violence when frustrated. These matters allow the Court to regard your moral culpability as substantially reduced, in comparison to offenders who have not experienced that level of developmental deprivation and abuse. Bugmy factors also influence my consideration of your criminal history. On the other hand, there are aspects of your personality and prior history that underline the importance of community protection as a part of the sentencing exercise.
[43]DPP v Heyfron [2019] VSCA 130 [59] (Priest, Kaye and Forrest JJA), citing R v Fuller-Cust (2002) 6 VR 496, 520 [78]–[80] (Eames JA). I also note the well-documented association in this country between profound childhood disadvantage and the experiences of Aboriginal and Torres Strait Islander people, which exists against a backdrop of colonisation and intergenerational trauma.
Coming to the issue of Verdins principles, Mr de Vietri relied on the Candlish report to argue that your experiences of childhood deprivation and trauma contributed to you being diagnosed with a moderate personality disorder with prominent features of ‘negative affectivity, disinhibition and detachment’.[44] This diagnosis was submitted to enliven Verdins principles 1, 3 and 4 in your case,[45] with the concession that any mitigation based on this diagnosis would be of a moderate degree.[46]
[44]Exhibit D1, Candlish Report [120].
[45]R v Verdins [2007] VSCA 102 [32] Verdins 1, which requires a connection between the offending and the mental disorder, allows for a reduction in moral culpability. In Verdins the Court noted ‘Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.’. Verdins 3 refers to the moderation of general deterrence, the degree of which will depend upon ‘the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both. Verdins 4 refers to the moderation of specific deterrence, which like Verdins 3 will depend upon the ‘nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both’.
[46]Transcript of plea on 8 June 2023, page 79.
I note that Mr Candlish also diagnosed you with a persistent depressive disorder, social anxiety disorder and substance use disorder, but your personality disorder was the focus of defence submissions related to Verdins principles.
In describing the connection between the offending and your personality disorder, Mr Candlish referred to the stress you were experiencing at the time of the offending, your lack of problem solving skills and reliance on antisocial means to solve problems. Your personality disorder limited your consequential thinking and your ability to think empathetically.[47] I accept Mr Candlish’s opinion in this regard.
[47]The Defence does not place reliance upon your diagnosis of a persistent depressive disorder or social anxiety disorder in making a Verdins submission.
I accept that the damage inflicted during your childhood has impacted your development into adulthood and contributed to the development of your personality disorder.[48] Therefore, both Bugmy and Verdins factors overlap with each other and have application in your case.
[48]See Exhibit D1 Candlish Report [152]-[155]; and DPP v Herrmann [2021] VSCA 160, [78]-[88].
As mentioned, your emotionally impoverished childhood and experiences of abuse and trauma mean that you moral culpability for the offences is lower than for a person without that background. I also give modest weight to Verdins grounds 1, 3 and 4.
Whilst the Crown fairly conceded that Verdins 5 has some application based on the diagnosis of personality disorder in the Candlish report, I consider this aspect of Verdins to be only of minor significance. Mr Candlish observed that your personality impairment may create some difficulties within a prison environment, because your coping skills are impaired compared to others, and you may experience greater levels of frustration compared to others. On the other hand, it appears you have adjusted quite well to your situation on remand, and you are not causing problems for prison management at the present time. Your currently settled behaviour in prison suggests a more favourable consideration of future risk than otherwise might be the case.
Mr Gibson submitted there was little evidence that you were remorseful for your offending, noting you burnt your clothes to avoid detection after the offence. He submitted it was a matter for the Court to determine whether remorse and a willingness to facilitate justice and accept responsibility could be inferred from your guilty plea.
Mr de Vietri submitted that your early guilty plea should attract a significant discount both for its utilitarian value and as evidence of remorse. He argued that you expressed genuine remorse in your police interview.
I accept that you cooperated with the police investigation and made admissions to the offending, although some things you said were plainly false.[49] Regardless of aspects of your interview that are questionable, your willingness to admit the offending to police is an important consideration. Although much of what you said focused on the impact of your crime on your girlfriend and yourself, this is consistent with the explanation of Mr Candlish that your personality disorder makes it more difficult for you than for a person without such a disorder to experience more complete empathy.
[49]For example see: Transcript of Record of Interview of Dael Newman on 2 April 2022, Q and A 31 where reference was made to going to Swan Hill to get car parts.
I therefore accept that your early guilty plea deserves weight beyond its utilitarian value on the basis of your cooperation with the police, and your expressions of remorse in your interactions with police and in your later discussions with Mr Candlish.[50]
[50]Exhibit D1, Candlish Report [13]: ‘Mr Newman described how he intended to rob a drug dealer and that he “got into a scuffle and I stabbed him.” Mr Newman reported that “I feel bad about what happened, I killed somebody, it was never my intention, I can’t turn back time.”’
Your willingness to facilitate justice through cooperation with police and an early plea indication is a matter in your favour. This avoided the need for precious resources to be expended investigating and proving your crimes.
You are also entitled to the benefit of the Worboyes discount due to the impacts of the COVID-19 pandemic on your experience in custody and due to the savings in court resources from your pleas at a time when the Courts have been dealing with backlogs caused by the pandemic.[51]
[51]DPP v Worboyes [2021] VSCA 169.
I have been informed by your counsel that you have behaved well whilst on remand for the current offending. You have been working in the prison kitchen and you are in remission from drug use in a controlled environment.
Regarding specific deterrence, rehabilitative prospects and community protection, I have considered how your criminal history bears on your chances of reform, whilst remaining conscious of how Bugmy factors interact with that assessment.
You have a lengthy criminal history in Victoria and New South Wales for a range of offences, varying in severity, the earliest entry dating back to 2000.
In April 2007, you were sentenced in the County Court by Judge White[52] to a term of imprisonment of 2 years and 5 months[53] relating to a serious episode of offending[54] involving the brandishing of a firearm towards your girlfriend in a public place whilst intoxicated. You also brandished a firearm at other people later that day.
[52][2007] VCC 429; Convictions and sentences were imposed for the following indictable offences: two charges of being a prohibited person possessing an unregistered firearm; three charges of reckless conduct endangering life; five charges of common law assault; and one charges of making a threat to kill. You were also sentenced for two summary offences, being offences of carrying a loaded firearm in a public place ; and carrying a firearm while intoxicated.
[53]With a non-parole period of 15 months.
[54]The offending took place on 28 August 2006.
In your favour, it appears that while serving the term of imprisonment imposed by Judge White, you performed well enough to earn a position in charge of the prison kitchen. Therefore, there is some prospect that, without the harmful effects of drugs and alcohol, you may similarly manage to improve yourself whilst in custody.
As pointed out by Mr de Vietri, after your release from custody following the 2007 sentence, there was a gap in your offending until 2017. Then, on 23 October 2017, you were sentenced to seven months’ imprisonment with a two month non-parole period for the offences of being armed with intent to commit an indictable offence, stalking, and wielding a knife in a public place. That incident related to Taylor. Between that sentence and your current period of remand, you were sentenced for several offences in New South Wales of varying degrees of severity, including weapons offences,[55] drugs offences, contravention of an AVO, animal cruelty, and low level driving offences.
[55]Including some concerning offences such as possessing an unauthorised pistol and use of offensive weapon to commit an indictable offence for which you were sentenced on 27 August 2020 to an aggregate of 12 months imprisonment with a 6 month non-parole period. It appears this sentence was unsuccessfully appealed and the sentence was confirmed on 29 September 2020.
The Crown submitted that your prospects for rehabilitation are poor due to your lengthy and concerning criminal history, and that weight should be given to specific deterrence and community protection.[56] These considerations were also submitted to be relevant to deciding the gap between the head sentence and non-parole period in your case.[57]
[56]Exhibit P2, ‘Crown Sentencing Submissions dated 25 May 2023’[33] and [44]. The Crown placed particular emphasis of community protection, and the observations of the High Court in Bugmy that an inability to control violent responses to frustration which is related to experiences of childhood deprivation and trauma may increase the importance of community protection.
[57]Transcript of plea on 8 June 2023, page 98.
Mr de Vietri accepted that whilst the Crown had accurately summarised your prior record in their written submissions,[58] he submitted that the offending in your twenties and thirties involving violence, weapons and theft related offences was linked to sourcing money to fund your drug addiction. Whilst this may be so, it is concerning that the current offending arose for similar reasons in the context of your lifestyle slipping back into earlier patterns of criminal behaviour.
[58]Exhibit P2, ‘Crown Sentencing Submissions dated 25 May 2023’[33].
You appear to have some insight into the changes you need to make in order to be able to return to the community,[59] allowing the Court to view you as having some prospects of rehabilitation, albeit somewhat guarded. However, your prospects for rehabilitation are largely dependent on whether you can overcome your drug habit and obtain counselling to help you manage your personality disorder. I consider that a lengthy period of parole supervision would greatly enhance your prospects of rehabilitation when you are released from prison.[60]
[59]Exhibit D1, Candlish Report [156].
[60]Exhibit D2, ‘Outline of Defence Submissions for Plea dated 30 May 2023’ [69]-[71] and [75].
Just punishment, general and specific deterrence, denunciation, community protection and rehabilitation are all relevant to sentencing in your case, although I have allowed for moderation of the punitive and deterrent aspects of your sentences due to Bugmy and Verdins considerations.
I have applied the principle of parsimony to the sentences to be imposed, as required by s 5(3) of the Sentencing Act 1991 (‘Sentencing Act’).
In considering current sentencing practices, I have perused the standard sentencing cases referred to by the parties in respect of the principal charge of murder, although none of them seem particularly closely aligned to the nature of your offending. I have also looked at the most recent Sentencing Snapshot in relation to murder.[61] Coghlan[62] and Treasure[63] were referred to by Mr de Vietri for comparative purposes. The facts in Coghlan and Treasure bear some factual similarities, but there are notable differences including that those cases concerned charges against s 3A of the Crimes Act 1958 and involved a joint crime. The two offenders, Coghlan and Treasure, intending a robbery and armed with knives, lured the victim and his girlfriend to a remote location. The victim was vulnerable due to poor vision and hearing. During the ensuing struggle in which the victim and his girlfriend tried to resist the offenders, the victim was stabbed multiple times to his upper body and chest. It was unclear which offender inflicted the fatal stab wound. Both offenders were sentenced to a term of imprisonment of 20 years, with a non-parole period of 14 years.[64]
[61]Sentencing Advisory Council, ‘Sentencing Snapshot: Murder’ June 2023 <sentencingcouncil.vic.gov.au/sites/default/files/2023-06/snapshot_273_murder.pdf>.
[62] R v Coghlan [2019] VSC 543.
[63]DPP v Treasure [2020] VSC 402.
[64]Mr de Vietri also referred to R v Fiscalini and Wynne [2022] VSC 51. In that case, Wynne was sentenced to 19 years imprisonment with a 14 year non-parole period for a charge of s 3A murder. While the case has some contextual similarities to the present case there are evident differences, including in the apparently accidental firing of a shotgun in the course of a robbery.
Regarding your offending, the Crown submitted that there should be some degree of cumulation, in recognition of the two different victims and the differing circumstances of each offence. While both offences relate to the same incident, the assault on Ms Lyons occurred after the attack on Mr Gaskell and was part of an attempt to prevent her from using the phone to contact emergency services. I accept that submission.
The sentence I will impose on you reflects the gravity of the crime of murder, involving as it does, the loss of a human life. In sentencing you, I have also had regard to both the maximum sentence and the standard sentence for murder.[65] I must take into account the standard sentence for murder as one of the relevant factors[66] when assessing the seriousness of the offence. In doing so, I must also consider the objective gravity of the offence and your moral culpability, in addition to all other matters relevant to sentencing discretion.[67] Consideration of the standard sentence does not impact the accepted ‘instinctive synthesis’ approach to sentencing and does not require or permit a ‘two-stage sentencing’. It is to be treated as a ‘legislative guidepost’, similar to a maximum penalty, and does not otherwise impact the matters to be taken into account when sentencing.[68]
[65]The Act ss 5(2)(a) and (ab). S 5A(1)(b) of the the Act states that ‘the period specified as the standard sentence for the offence is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.’ Pursuant to s 5A(3) of the the Act, for the purposes of s 5A(1)(b), objective factors affecting the relative seriousness of an offence are to be determined without reference to matters personal to a particular offender or class of offenders; and wholly by reference to the nature of the offending.
[66]The Act s 5B(2)(a).
[67]Brown v The Queen [2019] VSCA 286, 20 [55] ‘Judges sentencing for standard sentence offences should continue to assess offence seriousness in the conventional way taking into account both objective gravity and moral culpability’; McPherson v The Queen [2021] VSCA 53, 14 [31] ‘In particular, as this Court has said, judges must avoid engaging in ‘two-stage’ sentencing, whereby a vague, essentially intangible concept is used as a starting point from whence the sentence is adjusted upwards or downwards as the case dictates. It is a factor in the application of the intuitive synthesis, in the same way that the maximum sentence is. No more, no less’.
[68]Brown v The Queen [2019] VSCA 286, 1-2 [4].
Sentence
In light of the all the abovementioned considerations my sentence is as follows:
Dael John Newman, please stand.
On the charge of murder, I sentence you to 20 years and six months’ imprisonment, which is less than the standard sentence for murder.[69]
[69]Section 5B(5) of the Sentencing Act requires the Court to explain how the sentence relates to the standard sentence for the offence.
On the charge of causing injury recklessly, I sentence your to twelve months’ imprisonment and order cumulation of six months.
The total effective sentence is 21 years’ imprisonment.
I fix a non-parole period of 16 years.
Pursuant to s 6AAA of the Sentencing Act, I declare that but for your plea of guilty, I would have imposed a total effective sentence of 24 years’ imprisonment with a non-parole period of 20 years.
Pursuant to s 18 of the Sentencing Act, I declare that a period of 480 days of pre-sentence detention be reckoned as time already served under the current sentence, not including today’s date.
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