Director of Public Prosecutions v Noy
[2018] VSC 466
•25 July 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT LATROBE VALLEY
CRIMINAL DIVISION
S CR 2017 0119
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JASON NOY |
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JUDGE: | COGHLAN JA |
WHERE HELD: | Latrobe Valley |
DATE OF HEARING: | 3–12 April 2018 & 25 June 2018 |
DATE OF SENTENCE: | 25 July 2018 |
CASE MAY BE CITED AS: | DPP v Noy |
MEDIUM NEUTRAL CITATION: | [2018] VSC 466 |
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CRIMINAL LAW — Sentence — Murder of 11-month old infant — Blunt force trauma causing transection of the abdominal aorta, spinal fractures and laceration of the right kidney — Very severe degree of force inflicted — Antisocial/borderline structure of personality — History of depression — Childhood abuse — Lack of insight — No remorse — Prospects of rehabilitation guarded — Very serious example of crime — 30 years’ imprisonment with non-parole period of 26 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A J Grant | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr D W Gibson with Mr M Reardon | Victoria Legal Aid |
HIS HONOUR:
Jason Noy, on 12 April 2018, you were convicted by a jury of the murder of Harro Dean on 5 July 2016.
Harro Dean was born on 12 July 2016 and was almost one year old at the time of his murder. Harro was the son of Jamee Malcolm and Scott Dean. At the time of Harro’s death, Ms Malcolm had custody of him and you were in a relationship with her. It is fair to say that you had assumed a fatherly role to Harro and, in general, appeared to have a reasonable relationship with him and his half-sister, Illythia, then two years old.
You were born on 1 November 1989. You were 26 at that time of the murder. You are now 28.
At the time of Harro’s death, you and Ms Malcolm had been living together at 13 Digney Street, Paynesville, for about six months. It seems that the relationship, at least from Ms Malcolm’s point of view, had become pretty aimless, and she was in the process of starting another relationship. About three weeks prior, Ms Malcolm had gone away for a weekend, leaving you and one of her sisters to look after the children.
On 4 July 2016, the day before Harro’s death, Ms Malcolm had taken Harro and Illythia to her grandparents’ house in the morning, because the power had been cut off at 13 Digney Street. Ms Malcolm returned home with Illythia in the afternoon while Harro was taking a nap. Harro remained there until Ms Malcolm’s grandfather, Stephen Powell, brought him home at about 6.10 pm. Hafit and well at that time.
Michael Rice, a friend of Mr Powell, and Luke Fleming came to the house later that evening. Mr Rice gave evidence that nothing was amiss when he was at the house.
On 5 July 2016, Ms Malcolm had spent the early part of the day with the two children. You got up at about 3.30 in the afternoon, as was your habit. By then, Ms Malcolm had put the children down for their afternoon nap.
Harro woke up at about 5.30 pm and would not take the milk that Ms Malcolm offered to him. Ms Malcolm took him into the lounge room, placed him in his walker, and gave him some pasta that you had prepared for dinner. Although it appeared to her that he started to eat, it does not seem that he consumed much of the pasta.
Ms Malcolm then went with Illythia to Illythia’s bedroom down at the back of the house to sort out some of Ilthyia’s clothes. Ms Malcolm was in the bedroom for about an hour. The bedroom door was open. Ms Malcolm could hear you talking to Harro, who was laughing. Ms Malcolm thought that the two of you were either in the lounge room or in Harro’s bedroom, which was across from the lounge room and the kitchen, and at the opposite end of the passageway where Illthyia’s bedroom was.
Ms Malcolm then heard you use the microwave. At about that time, Illythia closed the bedroom door. About five minutes later, Ms Malcolm heard you coming down the passageway. She heard you call out to her, asking her to call an ambulance and to open the bedroom door. You were carrying Harro in your arms who, according to Ms Malcolm, did not appear to be breathing. You said that you did not know what had happened to Harro. You said that you had been playing with Harro, had changed him, and left him in his bedroom while you went to make a bottle of milk. You said that when you returned, Harro had stopped breathing.
Ms Malcolm called 000 as you carried Harro to the lounge room and placed him on the floor. It was 7.29 pm. As Ms Malcolm tilted Harro’s head back in order to commence cardio-pulmonary resuscitation (‘CPR’) as instructed by the 000 operator, she saw Harro take a gasp of air, but did not see any further breathing.
As Ms Malcolm performed CPR on Harro, Illythia, who had followed everyone to the lounge room, touched Harro and tried to play with him. Ms Malcolm told you to put Illythia to bed. You took Illythia to her bedroom and shut the door in a way that stopped her from opening it. It seems that you placed a chair under the door handle to prevent Illythia from opening the door, as observed by emergency personnel who attended a short while later and who heard banging coming from what must have been Illythia’s bedroom.
At 7.41 pm, the first two ambulance officers and paramedics arrived and took over from Ms Malcolm. Another four emergency responders arrived over the next 20 minutes. Both of you told one of the paramedics that Harro had not suffered any trauma and that there was nothing you could tell him. You said that you had been holding Harro, that he was fine but then struggled to breath, so you put him down. You again said that there had been no trauma or anything unusual before that.
Harro was then transported by ambulance to the Bairnsdale Hospital, where he was pronounced dead.
When you were first spoken to by the police, you said that you were still in the lounge room with Harro when Ms Malcolm took Illythia to her bedroom at about 6.00 pm. About five minutes later, you took Harro to his bedroom where you changed his nappy and clothes and laid him down in the cot. You said that Harro had been a ‘bit cranky’ for the past few days and that you thought he had been ‘getting sick’, as Illythia had been unwell with flu-like symptoms.
You told Acting Sergeant Sarah Marland that you left the room to make a new bottle of milk for Harro. You said that you were away for no longer than two minutes, and that when you returned, Harro appeared to be struggling to breath. You said that he was gasping for air, his skin was a pale yellow colour, and his eyes were open and tilted back. You said that you picked him up and tried unsuccessfully to administer mouth-to-mouth resuscitation. You then called out to Ms Malcolm, and gave her a description of the events that I have set out earlier.
On 7 July 2016, you made a video statement to police. You gave a version of events very similar to that given by Ms Malcolm about the events leading up to the time when Harro was injured.
You told the police that when you were changing Harro’s nappy, ‘he was kind of cracking it’ so you gave him his favourite blanket. You repeated what you had said to Acting Sergeant Marland about putting Harro in the cot and leaving the bedroom to go to get Harro’s bottle and warm it in the microwave for about a minute. You then returned to the bedroom. You said:
Q77:Just take your time.
A:And that’s when I walked into his room.
Q78:Yep.
A:I noticed he was just laying there, real - like, he was just laying, like, weirdly, like, and then I noticed that his whole body had gone real pale.
Q79:Yep.
A:And that’s when I picked him up and I noticed that he was struggling to breathe.
Q80:Yep.
A:So I didn’t know what to do, so I - I put him up onto me shoulder and I was just patting his back and – – –
Q81:Yep.
A:– – – rubbing his back, trying to get him to breathe but it wasn’t doing anything, so I didn’t know what else to do, so I tried blowing into his mouth and, like, you know, give him air to his lungs but it wasn’t doing anything. He took, like, two breaths and that was about it, and then I didn’t know what else to do, so I called out to Jamee on the other side of the house and – – –
Q82:Yep.
A:– – – just yelled out to ’em, like, ‘Call the ambulance and hurry up and get ’em to come here quick,’ and she’s like, ‘Why?’ and – and I told her to open the bedroom door because, like, she was in the bedroom door and Illythia closes the door.
Q83:Yep.
A:And I’m just standing in the door and I can’t open it ’cause I got Harro in me arms – – –
Q84:Yep.
A:– – – so she opens the door and I’m just like, ‘Hurry up and call the ambulance because he’s not breathing properly.’
Q85:Yep.
A: You know, ‘I wanna know what’s wrong with him,’ and she asked me what happened. I’m like, ‘I dunno what happened,’ like, literally just left the room for not even two minutes.
Q86: Yep.
A:And he was in his cot the whole time. He had nothing in his cot, no blankets, no toys or – – –
Q87:Yep.
A:– – – anything and then, yeah, I just went – came back into the room and – – –
Q88:Yep.
A:– – – just found him like that.
On 7 July 2016, a pathologist, Dr Heinrich Bouwer, conducted a post-mortem examination of Harro. Dr Bouwer found that Harro had suffered a transection (snapping across) of the abdominal aorta, acute compression fractures of vertebrae T10, T11, L1 and L2, multiple fractures of the spinous processes of T12, L1, L2, L3 and L4 with evidence of healing, multiple bilateral rib fractures some with evidence of healing, right lung bronchopneumonia, and a severe laceration of the right kidney.
It was Dr Bouwer’s opinion that the cause of death was intra-abdominal hemorrhage due to transection of the aorta and laceration of the right kidney due to severe blunt force trauma.
Dr Bouwer found that the abdominal aorta was completely transected in the immediate vicinity of the acute fractures to the lower thoracic and lumbar spine. At the L2 vertebra, the fracture was right across the vertebral body.
Dr Bouwer was of the opinion that the complete transection of the aorta and damage to the spine was caused by either bending the spine with the subject on his back or by applying force to the spine from the back. In either case, the injuries would be caused by hyperextension of the spine. The force had been sufficient to snap the ligaments supporting the spine.
You were arrested on 8 July 2016. In your interview, you gave a version of events quite similar to your earlier accounts. You accepted that you were the last person who had had contact with Harro. You said that nothing had happened between changing his nappy and placing him in the cot. The results of the post-mortem examination were detailed to you and you denied any involvement in causing the death of Harro.
In cross-examination on your trial, Dr Bouwer gave the following evidence:
Counsel:So is it fair to say that it’s a scenario that you can only speculate about the actual scenario that led to Harro being injured in the manner that he has, is that right?
Dr Bouwer:That’s correct because I wasn’t there, like you’ve pointed out before.
Counsel:Of course and of course — so you’re not able to, obviously, able to describe the manner in which the force was applied, is that fair?
Dr Bouwer:No but I can give my opinion as to hyperextension causing these injuries.
Counsel:When you use the term ‘severe’ how do you calculate that?
Dr Bouwer:Well how long is a piece of string.
Counsel:Well that’s important?
Dr Bouwer:Just to give an indication, um, if we use a three tier system. So let’s say degree of force, mild, moderate or severe just to put it in a more understandable scenario, um, I would think — well the injuries sustained in this injury would be the furthest scale of severe, even past severe, to cause this sort of injury.
Counsel:How do you reach that conclusion? – – –
Dr Bouwer:Um, we all handle babies. We’ve all handled babies. Babies just - backs don’t just breaks. You know we see babies fall from chairs, um, it’s not uncommon. They fall out of their cots. In my practice and as far as I know, we’ve not had this sort of injury in our institution. Um, in the literature there’s two case reports of fatal child abuse where this exact injury has occurred. So this is very rare. Um, to sustain this sort of injury there needs to be a significant, um, degree of force to snap a baby's back, to snap the aorta.[1]
[1]Transcript of Trial, DPP v Noy (Supreme Court of Victoria, S CR 2017 0119, Coghlan JA, 10 April 2018) 393–4.
It was apparent from the evidence of Dr Bouwer that Harro had suffered other quite significant injuries in the time prior to his death. It would be tempting to conclude that you were the person who inflicted those injuries. On the plea hearing, the prosecution, quite rightly, accepted that there is no evidence that you did so. I accept that submission, and those injuries will not be taken into account to any degree in this sentence.
I accept that your conduct was not premeditated. Whether you intended to kill or cause really serious injury, or whether you were reckless as to the consequences of your deliberate actions, does not, in my mind, make much, if any, difference to the sentence that I am going to impose.[2] At your trial, the prosecution submitted to the jury that you intended to cause, or knew that your actions probably would cause, Harro at least really serious injury.
[2]See R v Aiton [1993] 68 A Crim R 578.
Consistent with the jury verdict, I am satisfied beyond reasonable doubt that, when you did the act that killed Harro Dean, you did so intending to cause him really serious injury. That is particularly so given the nature of the injuries inflicted by you.
This case involved the brutal killing of an 11-month-old baby for no apparent reason. This murder falls at the very upper end of seriousness of crimes of its kind. The prosecution conceded that I should not sentence you to life imprisonment. It follows that the prosecution submits that this case is not in the worst category of cases,[3] but I find that it falls not far short of it.
[3]R v Kilic (2016) 259 CLR 256, 265 [18].
On the plea, I received victim impact statements from Jamee Malcolm; Scott Dean; Patricia Allott, Ambulance Community Officer; and Betty Bennett, Scott Dean’s grandmother and Harro’s great-grandmother.
Ms Malcolm said in her statement:
Every night before I go to bed I open your door and kiss your little box where your lifeless body lays, wishing I could hold you and kiss your soft little face again as I lay you down in bed. Instead, I’m left here without you, missing you every day and night. Wishing you could still be here with us but instead you lay in a box instead of your bed where you actually belong.
My daughter and I never got to celebrate his first birthday. We never got to see his first footsteps, his first day of kindergarten or his first day of school.
All of the celebrated days are really difficult for me. Mother’[s day, Christmas and Easter. Harro would have been three this year.
He was a happy boy, he hardly cried, was a good sleeper, was loved by his older sister, loved by me and very much loved by his pop who would visit every day.
As soon as the incident happened I became immediately unwell. At the time I didn’t realise how unwell I was. After several days I found myself not knowing if it was day or night, not knowing where I was and completely unable to speak. A neighbour called an ambulance for me and I was admitted to the psychiatric ward. I was in a trauma induced shock for months. Harro’s funeral was initially postponed because of my mental and emotional health. And when I did attend his funeral I was on strong medication.
It can be difficult living in a small town and a small community because everyone talks. Initially some family members and friends thought I had something to do with Harro’s death. Even right up to the sentence I was receiving messages and hearing from people that still thought I was involved. I felt judged and isolated from people who I thought would be there to support me. People also took to social media to talk about this publically, something that was completely out of my control and caused me a lot of stress.
After Harro died DHHS took away my daughter Illythia who was 2yrs old and also my second daughter Indiana now 9mths old, who was born after Harro’s passing. With both Illythia and Indiana now out of my care, I wasn’t able to afford to live in my house and I have had long periods of homelessness and unstable housing since. I rely on friends, family members and multiple services to assist me with housing and have yet been able to find a house of my own.
I have regular and ongoing visits with both my daughters. It is really hard for all of us when I have to leave, with Illythia getting upset, crying and holding on to my leg, not wanting to let go. I feel heartbroken every time I have to say goodbye.
Not only has Harro’s death turned our lives around but it also unfair that my girls and I are forced to be apart.
I was nervous coming to court. It was all very real. I came because I wanted to find out why he did this. I wanted to know what he was thinking, what his psych reports said. I know there are some things I will never have answers to.
I want this to all be over. My focus is on my kids and getting us a home, so we can all be together.
The effect on all those who submitted victim impact statements has been significant, particularly for Ms Malcolm and Mr Dean. Ms Malcolm’s grandparents, Susan and Stephen Powell, gave evidence at the trial but did not make victim impact statements. I am satisfied that they were also profoundly affected by Harro’s death. The effect on the extended family has also been great. The murder has been life-changing for them. The death of a baby in these circumstances is particularly awful.
Ms Allott was one of the first emergency responders who attended to Harro at the house. Sentencing for crimes takes into account the fact that emergency services workers are called upon to respond to terrible events. It is a timely reminder to all of us just how difficult and confronting cases of this kind are, not just to the victims but also to those in the position of Ms Allott. We would do well to remember that the community should be very grateful for the services they perform.
You have relevant prior convictions. In 2010, you were convicted of recklessly causing injury, recklessly causing serious injury, contravening a family violence order and intentionally destroying property. You were sentenced to 6 months’ imprisonment, 3 months of which was suspended for 12 months. You breached that suspended sentence when you were convicted at the Latrobe Valley Magistrates’ Court on 20 April 2012 of several offences, including aggravated burglary and possessing a controlled weapon, as well as traffic and dishonesty offences. You were sentenced to be imprisoned for 6 months, and 3 months of that sentence was suspended for 12 months. You completed that sentence of imprisonment.
Your prior convictions are relevant to the extent that they show that you have previously used violence in what was, apparently, a family setting. You are not a first offender and have served a prison sentence. Apart from a conviction and fine recorded in 2015 for shop stealing, failing to answer bail, unlawful assault, carrying a controlled weapon and possession of cannabis, you have not been in trouble with the authorities since 2012. Except in the way I have mentioned above, your prior criminal history is not of any great significance in sentencing you for this offending.
You were born in November 1989 in Launceston, Tasmania. You grew up there until you were 10 years old, at which time your mother moved to Victoria.
It was submitted on the plea that your mother had ‘an unfortunate tendency to partner with violent and aggressive men’. Prior to partnering with your father, your mother was in a relationship with a man who was abusive towards her. She had two children at that time, being your older half-brother and half-sister. Your mother later formed a relationship with your father, and together they had three children. You were the eldest, followed by your two brothers, Matthew and Nigel, who were born in 1991 and 1993 respectively. Nigel suffered from autism.
Your father was an alcoholic. Your family life was marked by significant domestic violence, and several separations. You were the victim of multiple assaults by your father when you were a young child. He was often violent and, according to your mother, often overdisciplined the children. The Department of Health and Human Services in Tasmania was notified several times of your father’s behaviour towards the children. Your family had, on at least one occasion, spent time at the Launceston Women’s Shelter.
In 1992, just after you turned three, a notification of child abuse was made by your mother that your father had struck both you and her with a belt. You had been playing with a toy in the kitchen and when told to put the toy down, you threw it. Your father then stuck you multiple times with a belt, leaving marks on your body. You were medically examined and were recorded to have presented with a number of bruises including linear bruises consistent with having been struck with a flexible linear object at least five times. You were also found to have a bruised and swollen forehead, a bruised chin, a bruised left shoulder with broken skin, and bruising to your anterior chest and upper leg. Your father attended court in Launceston in relation to this assault, resulting in the imposition of a 12-month supervision order.
The next incident contained in the Department file occurred in October 1995, when you were five years old. Your school notified the Department that you had presented with bruises, marks and belt marks. According to your mother, your father had hit you because you had lied about washing yourself. You were medically examined and were found to have several significant bruises on your buttocks. Child protection did not take further action following that incident.
The defence submitted that, from a very young age, you were subjected to significant and protracted physical abuse from your violent and alcoholic father. It is tolerably clear that you grew up amid an atmosphere of violence and fear.
As previously indicated, you moved with your mother and siblings to Victoria when you were 10 years old. Your mother separated from your father and formed a new relationship with a Craig Ryan. You continued to see your father on holidays, but that relationship eventually fell away. At the time of the offending, you had not seen your father in three years.
You attended school in Narre Warren South. You were described as a below-average student, but with a stable group of friends. Along with your family, you lived in Craig Ryan’s mother’s house in Cranbourne. In 2005, when you were 16, another brother, Joshua, was born. Joshua also had autism. In addition, by this stage it was known that your other brother, Matthew, suffered from frontal lobe damage.
Throughout this time, your mother experienced further domestic violence at the hands of Craig Ryan. She moved the family to Hampton Park, and then Longwarry, with intermittent stays in domestic violence shelters.
You left school in Year 10. You completed a course in mechanics but did not take up employment in that field. At that time, you were living in a caravan on a property in Longwarry.
You then worked for two and a half years at a café at Fountain Gate Shopping Centre in Narre Warren. You were employed as a waiter and eventually became a manager of the café. This was effectively your only period of employment, as you have not worked since then.
You used cannabis from the age of 14. You became intoxicated for the first time at age 8, and were drinking nearly every night from 15 to 19. In 2008, when you were 17 years old, your younger brother Nigel committed suicide due to bullying. After Nigel’s death, you left home and your emotional state rapidly declined. You began using drugs and alcohol to cope. In the following years, your life consisted of heavy drug use and occasional homelessness. It is in this context that the crimes listed in your criminal record occurred.
Around this time, you were first diagnosed with depression. It is noted in the report of Dr Nina Zimmerman that you recalled taking an overdose. Some involvement with the Crisis Assessment and Treatment Team was noted on your file but you did not receive any ongoing assistance.
It is recorded that during 2013, you were admitted to hospital or a medical clinic for your mental health. You presented with suicidal ideations on at least one of those occasions, and were diagnosed with bipolar disorder. You were prescribed Quetiapine and Sertraline. In 2014, you attended six sessions with a psychologist. Dr Zimmerman noted that you could not recall these sessions, and that you were recorded as presenting to those sessions as ‘over-sedated’.
You moved to Warragul for 18 months, before starting a relationship with Jamee Malcolm in Morwell on 2014. That relationship ceased after about 11 months, but you remained in contact with Ms Malcolm until she asked you to move in with her in Paynesville in 2015. You assisted with the rent and helped to look after the children. It was submitted that, although you were at first in a relationship, that was no longer the case in the period leading up to the offence. It was also submitted that you had no broader friendship group, but were strongly attached to Ms Malcolm and the children.
While on remand in custody for this offence at the Melbourne Assessment Prison, you did not spend any time in the acute psychiatric unit. You were sent to Port Phillip Prison, but later transferred to the Metropolitan Remand Centre following an assault on you.
Dr Nina Zimmerman, forensic psychiatrist, prepared two reports. The first, dated 13 June 2018, was tendered on the plea and the second, dated 30 June 2018, I have marked as an exhibit today. The second report was necessary because, after the first report had been prepared, material was received from the Department of Health and Human Services in Tasmania, from which the circumstances of your early life set out above were obtained.
In her first report, Dr Zimmerman considered that you exhibited features consistent with antisocial/borderline structure of personality. In her opinion:
It is possible that Mr Noy’s sensitivity to feelings of rejection or betrayal by partners and his history of intense episodic anger contributed to the offending. There is no other link in my opinion between psychiatric illness and the offending.[4]
[4]Report of Dr Nina Zimmerman dated 13 June 2018, 7.
Regarding remorse, she noted that:
Mr Noy did not express remorse as he maintains that he is not guilty of the offence. However, he stated that if he had committed such an offence, he would be unable to continue living. To this extent, he communicated horror at the enormity of what occurred.[5]
[5]Ibid 8.
In her second report, Dr Zimmerman expressed her opinion about the importance of that material as follows:
Opinion
This record of significant physical abuse inflicted by Mr Noy’s father provides glimpses of the devastating impacts it had on Mr Noy’s early childhood. He, his mother and his siblings were abused and spent months at a time in refuges to escape the violence. He was subject to at least 2 protection orders to try to keep him safe from his father. However, in his account to me, Mr Noy omitted all of this, admitting only that his father may have hit his mother and that he may have been hit with a wooden spoon (in fact he was belted with electric cords and belts that left welts and bruises on his face, torso and limbs). Mr Noy identified with his father, describing them both as people who struggle to express emotions. He spoke fondly of visits to Tasmania as a child to see his father about once a year after his mother finally left and moved interstate when Mr Noy was 6. The picture provided to me by Mr Noy of a child who ‘did not like to draw attention to myself’ and who struggled academically makes perfect sense in light of his early years of attracting the violent wrath of his father if he committed minor misdemeanours such as throwing a toy at the age of 3. An emerging pattern of emotional instability, depression, using drugs to handle distress and unstable relationships are all consist with early experiences of significant abuse at the hands of a care-giver with whom Mr Noy continues to identify. Just as Mr Noy described being left to care for his ex-partner’s young children, his father had described being left to care for his children and those of a friend. But while Mr Noy denied any resentment of being left in this position by a woman he described as being unable to cope, his father expressed anger at being taken advantage of and rage at a woman who could not discipline her own children.
ln response to the questions you have posed:
a. Mental illness:
i.I remain of the opinion that Mr Noy has exhibited both behavioural and emotional features consistent with the antisocial/borderline structure of personality. The additional information from Child Protection of early significant abuse from a care giver provides context to the development of feelings of anger and distress from his teen years expressed in thoughts of suicide and then in threats/acts of violence against others. His relationship difficulties and sensitivity to feeling abandoned or betrayed is likely to have stemmed to a large degree from the shattered attachment with his father.
As noted in my initial report, disorders of personality are enduring and would have been present at the time of the offending.
ii. I remain of the opinion that Mr Noy has a history of past episodes of depression. He describes having experienced both biological and psychological depressive symptoms in the past, including disturbed sleep, and appetite and energy alongside increased anger, low mood, themes of hopelessness and suicidal ideation. Individuals with borderline personality structures are vulnerable to episodes of depression and Mr Noy remains at risk of relapses in the future at times of stress.
iii.Mr Noy has a history of chronic cannabis dependence and has also had periods of alcohol dependence and experimentation with other illicit substance. Individuals with borderline personality structure frequently turn to substance misuse to manage their emotional dysfunction and hence his drug use is likely to be in part related to his personality difficulties. It is now apparent that Mr Noy has a biological predisposition to significant substance misuse.
b. Offending:
i.Mr Noy denied having committed. the index offence, making it difficult to be certain about links between his mental state at the time and the act he has been found guilty of committing. However, the parallel between the physical assaults perpetrated on him by his father that first came to attention when he was 3 and the fact that he is now found guilty of killing an infant boy in his care is noteworthy. His father provided a narrative of feelings of anger, resentment at being left in charge of children and trying to ‘discipline’ an infant with inappropriate force. Mr Noy denies any anger, resentment or attempt to discipline – denies, in fact, the entire offence. Mr Noy demonstrates a classic example of repression – initially of the abuse perpetrated against him by a father who he loves/hates and subsequently of his own crime. At no time has he mentioned his father’s abuse to mental health staff that he has had contact with over the years. To me, he painted a picture of his father as an alcoholic but benign figure with whom he identified, painting out the too-painful reality of the cruelty enacted upon him. Instead of being able to talk about and work through his pain, Mr Noy has re-enacted the anger and violence during his life. He can identify with his father only by repressing a painful reality about him. When Mr Noy found himself caring for young children, those early years are likely to have been re activated. Something triggered in him the violent and punitive actions of a father unable to manage his emotions a generation before. Mr Noy’s early experiences contributed to the development of his personality disorder, characterised by an unstable sense of self, of others and emotional lability. I believe that there is a relationship between Mr Noy’s personality disorder and his actions on the day of the offence.
ii. Mr Noy did not express remorse. He could not express remorse, just as he could not express anger at the father who had abused him. Although he maintains .that he is not guilty of the offence, he stated that if he had committed such an offence, he would be unable to continue living. To this extent, he communicated horror at the enormity of what occurred and, at another level, the horror of what he had experienced.
iii. While sentencing properly remains a matter for the Court, I am of the belief that a custodial sentence poses particular challenges for individuals with a borderline personality structure. Mr Noy is likely to struggle with managing intense mood swings and will be prone to relapse into depressive episodes. It will be important that Mr Noy remains under the care of mental health staff in prison to monitor for any deterioration.
c. Treatment:
i. In the past, the mainstay of Mr Noy’s treatment has been pharmacological rather than psychological, apart from 6 sessions with a psychologist in 2014. He has been treated with the sedating antipsychotic and mood-stabiliser quetiapine for some years. This is likely to have contributed, in concert with his cannabis abuse, to his sedated presentation in 2014 and his daytime somnolence. There appears to be little or no collateral information for why this medication was commenced and .continued. Certainly he has proved resistant to having it ceased in prison and may have become dependent on its sedating properties to cope with unpleasant affect states. He has also been treated long-term with an antidepressant, which seems appropriate given his propensity to depressive episodes.
ii.Currently, it seems likely that Mr Noy has a long period ahead of him· in prison. I would recommend review by a psychiatrist of the need for an antipsychotic given the apparent lack of indications and the associated side effects of such medication.· It seems appropriate to continue with the antidepressant in the medium term, given the possibility of relapse of his depression. Crucially, long-term psychological interventions can assist those with borderline personality structures to manage intense emotions more constructively. Forensicare offers a program in some of the prisons addressing those with problems with emotional regulation that would be appropriate for Mr Noy. Difficulty regulating emotional states including anger, instability of relationships, impulsivity and difficulties related to sense of self are all targets of such interventions. Knowledge of the specific trauma that Mr Noy has been repressing for years will also provide a target for those working with him in the future.
iii. Addressing the issues outlined above — substance misuse, mood disorder and emotional dysregulation- will help to reduce the risk of reoffending.[6]
[6]Report of Dr Nina Zimmerman dated 30 June 2018, 4 (emphasis in original).
There are two major changes from the first report. First, Dr Zimmerman now considered that ‘there is a relationship between Mr Noy’s personality disorder and his actions on the day of the offence’ and, secondly, that ‘Mr Noy did not express remorse. He could not express remorse’.
In her second report, Dr Zimmerman also added the italicised words below:
Although he maintains that he is not guilty of the offence, he stated that if he had committed such an offence, he would be unable to continue living. To this extent, he communicated horror at the enormity of what occurred and, at another level, the horror of what he had experienced.[7]
[7]Ibid (emphasis added).
I take that revised paragraph above to mean that, because of your particular personality disorder, which results at least in part from your background, you cannot actually accept the enormity of what you did.
Regarding Dr Zimmerman’s opinion that:
[w]hen Mr Noy found himself caring for young children, those early years are likely to have been re-activated. Something triggered in him the violent and punitive actions a father unable to manage his emotions a generation before,[8]
the prosecutor submitted that, without knowing what the ‘something’ was which triggered your actions, it is difficult to give significant weight to that conclusion. There is no evidence in this case to say what the trigger might have been other than the generally unsatisfactory nature of your relationship with Ms Malcolm.
[8]Ibid [10].
The fact of the matter is that you do not express remorse and do not show insight into your offending. These matters are relevant to your prospects of rehabilitation, which, on all of the material, I regard as being guarded at best, having particular regard to your borderline personality structure.
As the law stands in Victoria, your borderline personality structure does not act to reduce your moral culpability, and even if Dr Zimmerman had gone so far as to say there was a causal relationship between your personality structure and your offending, it would not have attracted the principles set out in R v Verdins.[9] That is, the evidence does not show that your personality structure was such that you could not reason appropriately about the wrongfulness of your action or how that condition might reduce your moral culpability.
[9](2007) 16 VR 269; DPP v O’Neill (2015) 47 VR 395.
That is not to say that your personality structure is irrelevant. It may explain your conduct in circumstances where it might otherwise be regarded as not capable of explanation. It is also relevant to your depression. They are both features which will make your sentence more difficult. You are in a class of prisoners who will have a harder time in prison, not only because you will serve your sentence in protection because of the nature of your crime, but also, related to that, because you will be isolated. I accept that you are afraid of what will happen to you in prison. You have very little support.
Your background as a young child and for much of your upbringing was deprived and difficult. It has long been accepted that such deprivation is of relevance to sentencing.
I take all those matters into account.
I have read all the cases that were referred to me and have had regard to them to the limited extent that individual sentences in other cases can be of assistance.
I regard this as a particularly serious example of the crime of murder. Although the killing was swift, its circumstances were extremely brutal. The principles of retribution, just punishment and general deterrence are very important. As the matter stands, the principle of specific deterrence also carries some weight.
For the murder of Harro Dean, I sentence you to be imprisoned for 30 years and I fix a non-parole period of 26 years.
I declare pursuant to s 18 of the Sentencing Act 1991 that you have served 746 days of pre-sentence detention, excluding today. I direct that this declaration and its details be entered into the records of the Court.
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