R v Allen

[2023] NSWSC 1495

Supreme Court

New South Wales

Medium Neutral Citation:

R v Allen [2023] NSWSC 1495

Hearing dates:

1 December 2023

Date of orders:

1 December 2023

Decision date:

01 December 2023

Jurisdiction:

Common Law - Criminal

Before:

Fagan J

Decision:

Imprisonment for 22 years commencing on 6 October 2022, and expiring on 5 October 2044 with a non‑parole period of 15 years and 9 months, expiring on 5 July 2038. The earliest date for eligibility for release to parole is 5 July 2038.

At the expiration of sentence subject to the Crimes (High Risk Offenders) Act 2006 (NSW).

Catchwords:

CRIME – sentencing – murder

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Category:

Principal judgment

Parties:

Rex
Raymond Allen

Representation:

Counsel:
N Keay (Crown)
G D Wendler with J Lawrence (offender)

Solicitors:
Solicitor for Director of Public Prosecutions NSW (Crown)
Van Houten Law (offender)

File Number(s):

2021/297607

Publication restriction:

No

JUDGMENT

1. Raymond Allen was tried before me at Wollongong commencing in late September 2023 for the murder of David McArthur. On 4 October the jury returned their verdict of guilty and the offender is now to be sentenced. The maximum penalty by statute is life imprisonment and a standard non‑parole period of 20 years is prescribed. Serious as this murder was, the level of culpability involved does not demand a life sentence according to the criteria specified in s 61 of the Crimes (Sentencing Procedure) Act 1999 (NSW). I will fix a finite term of years.

2. Mr McArthur was killed at the door of his caravan in a van park at Sanctuary Point on the evening of 25 July 2021. He was 49 years old. He had served in the regular army from the age of about 20 or 21 for four years. After his medical discharge in 1996 he had worked in various capacities in Sydney, Wilcannia and South Australia before coming to Sanctuary Point in 2019. His parents lived there and he resided with them for a year before moving into the caravan park.

3. For some time prior to his death Mr McArthur had been dealing in methylamphetamine in a relatively small way, buying quantities of the drug in Sydney on on-selling to a circle of users in and around Nowra, 32 kilometres north of where he lived in Sanctuary Point. Dean Vimpani and the offender both resided in Nowra in 2021. They were users of methylamphetamine and they knew David McArthur as a supplier. In about early July David McArthur had provided drugs to Vimpani that were of poor quality. Vimpani nurtured a grievance over this.

4. I am satisfied beyond reasonable doubt that from about 22 July 2021 the offender and Vimpani were planning to rob David McArthur of drugs or money or both. The evidence does not enable me to conclude that either one or the other of them was the initiator of the plan, only that that the two of them agreed upon it. Vimpani may have been motivated by his grievance over the previous poor quality supply. I am satisfied to the criminal standard that the offender was simply motivated by a desire to obtain extra drugs and/or extra money with which to purchase drugs elsewhere. He was at the time supported by Centrelink payments and, by his own admission, he used each fortnightly benefit to buy 14 two‑litre casks of port, which he consumed at the rate of one per day until the next welfare payment came through. He also used drugs of various kinds. I infer that he had a high need for funds to maintain his various forms of substance abuse.

5. At about 7.30pm on 25 July 2021 Vimpani drove his vehicle with the offender as passenger to Sanctuary Point to carry out the robbery. Hamish Macintyre‑Cathles travelled with them as a backseat passenger. He gave evidence at the trial that he was not a party to the plan and that he was in the company of the other two fortuitously as a result of events that all three of them had been concerned in earlier in the day. I accept Macintyre‑Cathles' evidence in that respect. He took no part in the events that led to David McArthur's death that evening at the caravan park.

6. The offender was aware that David McArthur had served in the army and he assumed that with that background he may be capable of resisting any attempt to rob him. For that reason the offender armed himself with a kitchen knife when he set off from Nowra in Vimpani's car. During the trip Macintyre‑Cathles saw the offender holding the knife in his right hand. He said that he knew they were headed to David McArthur's place and as they approached he began to panic about what might occur. Macintyre‑Cathles gave the following evidence, which I accept:

When I was starting to panic and … I knew that this guy had been in the army, and I am like, “Well, what are you - why are you going to staunch - this bloke's been in the army, like, why … would you be - this isn't smart play”. And he [referring to the offender] was like, “Yeah, it's good, I know that. … I'll just stick this all the way through him", and, like … psyched himself up ... But other than that I didn't hear him say anything about the knife.

7. The offender and Vimpani agreed that when they reached David McArthur's van Vimpani would find the power box that served it and turn off the electricity. I am satisfied beyond reasonable doubt that their mutual purpose in this was to cause David McArthur to come out from his van and enable the offender to confront him and effect the robbery. They may also have intended that confusion, in the darkness, might assist the offender to get the upper hand.

8. Vimpani parked his car on the street outside the van park and he and the offender walked through to David McArthur's van to carry out this plan. Vimpani did not locate the correct power switch. All he succeeded in doing was to cause the lights in another van nearby to flicker on and off. The only direct evidence of what occurred when the offender presented himself at the entry door to David McArthur's van is that given by the offender in the trial.

9. I did not find the offender to be a truthful or reliable witness for a number of reasons. His evidence was in conflict at several points with other witnesses whom I found more believable. Examples include the conflicts between the evidence of Macintyre‑Cathles and of the offender concerning conversations in the car and concerning disposal of the knife after the stabbing. Another example is the conflict between the evidence of the offender and that of David Emmans concerning the offender having exhibited the knife to Mr Emmans at Nowra after the robbery. Further, the jury rejected the offender's evidence concerning his perception of a need to defend himself when he confronted David McArthur. They clearly did not accept that self-defence was the reason he inflicted the fatal stab wound. I am bound by the jury's assessment of the offender in that respect. I, also, am satisfied that his evidence of self‑defence was disproved beyond reasonable doubt.

10. Without any reliable direct evidence of the precise sequence in which the offender’s confrontation of David McArthur at the door of his caravan became a physical conflict, all that is clear is that the offender moved to the door of the van, the two men faced each other there and the offender made a single thrust of the knife to Mr McArthur's right upper chest. I am unable to find whether David McArthur saw the knife before he was stabbed with it, or whether he made any physical move towards the offender, either defensive or offensive, before the knife was used.

11. With the single thrust the knife severed the subclavian artery and vein. Mr McArthur had sufficient residual strength to retreat inside his van, close the door and drag his dishwasher up against it to prevent his assailant from entering and pursuing the attack. David McArthur then collapsed near the kitchen sink in his van, which was opposite the door about two metres away. A female neighbour heard Mr McArthur's shouts of alarm and came to administer first aid. She called the emergency number. Despite her efforts to assist Mr McArthur, he suffered massive blood loss and died before paramedics could reach the location.

12. The offender fled the scene as soon as he had struck with the knife. He did not enter the caravan to locate any drugs or money that he could steal. It is a measure of the drug and alcohol induced fog of the offender’s brain that he had no rational concept of how he would complete this robbery. I am satisfied beyond reasonable doubt that he carried the knife because he thought a weapon would improve his chances in a struggle with David McArthur. I am not satisfied that he had planned his moves far enough ahead to have held an intention actually to strike Mr McArthur with the knife irrespective of his reaction to the offender's presence and demands. I am not satisfied to any standard that when the offender did use the knife he intended to kill.

13. It is consistent with the jury's verdict and I find beyond reasonable doubt that the offender intended to inflict grievous bodily harm. It was inevitable that such harm would follow when the knife was used. I am also satisfied that the offender knew when he approached the van that his confrontation with David McArthur would inevitably lead to physical conflict. He had no reason to believe that Mr McArthur would just hand over whatever was demanded of him. The offender removed his shirt before he went to the front door of the van, indicating his expectation of a fight. I am satisfied beyond reasonable doubt that he knew it was highly likely that he would have to use the knife in the course of the robbery. His conversation with Macintyre-Cathles in the car revealed his expectation.

14. The offender was clearly affected by intoxicants at the time of the events at Sanctuary Point. He was observed by Macintyre-Cathles to be agitated. He had no plan for limiting the violence that would ensue when he endeavoured to carry out the robbery.

15. Macintyre-Cathles gave evidence of a confrontation that had occurred with other people in Nowra earlier in the day when Macintyre‑Cathles, Vimpani and the offender went to a property occupied by Ms Jess Adamson to take possession of a quad bike that belonged to Vimpani. Macintyre‑Cathles said that the offender took a knife with him to that confrontation. He made the following observation:

I don't know why he would do that. Me personally, I chose a baseball bat because they [referring to others with whom Macintyre-Cathles and the offender were in dispute] had a knife, because a baseball bat you can keep someone at bay with. A knife is all, all bluff unless you're going to use it and if you're going to use a knife, well then you can do what happened, you know. So I don't, I don't know why he chose a knife. To me it's not the smart thing to do.

16. The plain common sense of Macintyre-Cathles’ evidence in that passage obviously applied to the circumstances in which Vimpani and the offender approached David McArthur's van at about 8:00 pm on 25 July. Macintyre-Cathles’ caution did not penetrate the offender's understanding.

17. Following the stabbing the offender exited the caravan park and rejoined Vimpani's car on the street outside. He said to Vimpani and to Macintyre‑Cathles that he had put the knife all the way through the deceased and he pointed to blood on the blade. In that conversation he appears to have been somewhat detached from what he had done. Macintyre-Cathles said that he was neither happy nor upset and that he and Vimpani apologised to each other for their having failed to carry out the robbery. The offender was similarly detached from the reality and the gravity of his crime when he showed the bloodied knife to David Emmans back at Nowra a little later in the evening. I am satisfied that in the immediate aftermath the offender did not believe that he had injured David McArthur fatally. However, he became aware of that the next day through media reports that were passed onto him by a friend.

18. The above summary of the events identifies the features of the offending that contribute to its objective gravity. For the purpose of determining what sentence the offender should serve, I am bound by law to take into account his personal background, his prospects of future rehabilitation and other matters that are subjective to him. As I refer to those considerations now and weigh them up, it may seem to bereaved family members that this proceeding is weighted towards concern for the offender. However, David McArthur's family may be assured that the Court does not lose sight of the intensity of the grief that has been occasioned by these events, on four generations of the McArthurs, his parents in their late 60s, his sisters and their children, his daughter and his grandson. Victim impact statements were read in the sentence proceedings. Those statements have firmly impressed upon the Court that David McArthur was greatly loved and valued and that his loss is deeply, widely and lastingly felt.

19. The offender's personal background has been reported to the Court in a history taken by Dr Pusey, psychologist. The offender is now aged 41, he was 39 at the time of the offence, born in 1982. The offender is the only child of his mother and father. He has never had any significant connection with or relationship to his father. His mother had two daughters, to other relationships. Growing up the offender moved with his mother around New South Wales, Queensland and South Australia. His mother continued an unstable relationship with his stepfather, who is the father of one of the offender’s sisters. Between that couple there was constant domestic violence. The offender was periodically removed from this disordered and dysfunctional family and placed into foster care. His behavioural difficulties prevented successful fostering. The internal instability in his family and the social instability that was inherent in his moving from place to place and from school to school compromised the offender’s education. He did not progress past year 8.

20. By the age of 15 in 1997, the offender was using drugs and he was at times in juvenile detention. From that time forward the offender has been repeatedly in conflict with the law, with relatively infrequent periods of liberty during which he has at times had employment, but has always reverted to drug and alcohol abuse, criminal offending and return to custody.

21. As a juvenile, the offender's crimes in New South Wales were of a property nature: breaking and entering, receiving stolen goods, obtaining money by deception and so on. This pattern continued until 2001 when the offender went to South Australia. In that state he committed a series of offences, again mostly of a property nature but also involving assaults and moderate violence. When he returned to New South Wales in 2006, at the age of 24, the offender was sentenced to his first term in prison, which was three months for common assault and associated offences. Those offences had been committed in 2001 before he went to South Australia but he was only dealt with for them on his return.

22. Between 2006 and 2014 the offender served in New South Wales a series of short terms of imprisonment , of between three months and a year, for offences that were increasingly and persistently of a violent nature. He was in prison for three years out of the eight years between 2006 and 2014. He was transferred in custody to South Australia in 2014, in circumstances not explained on the papers before me. In South Australia the offender was imprisoned for 1 year and 4 months, commencing 15 March 2015, for offences of serious criminal trespass in a place of residence, larceny and assault that had been committed in that state in early to mid 2003 and in 2007. Upon his release, while on parole, the offender committed a robbery on 16 August 2016, referred to in the South Australian criminal records as “commit theft using force”. That resulted in the offender being imprisoned in South Australia for a further 3 years and 7 months. From the South Australian records he appears to have served total of between 5 and 6 years in prison in that state. His last sentence expired on 3 September 2020 and he then returned to New South Wales.

23. It is pertinent to refer to a further offence committed by the offender subsequent to the murder for which he is now to be sentenced. Notwithstanding that he was aware from the morning of 26 July 2021 that his conduct at the caravan park the night before had caused David McArthur’s death, the offender committed an offence of reckless wounding on the streets of Nowra late in the afternoon of 8 September, less than two months later. The offender and a friend named Collier were walking on a public street when they encountered two young men. Precisely how the altercation between the two pairs of men started is not entirely clear from the facts that have been provided to me in connection with the present sentence proceedings but it appears that insults or taunts were exchanged and it turned to violence.

24. In the course of this, the offender was holding a drinking vessel, referred to as a mug. He smashed it and used that to inflict a wound to the head of one of the two young individuals with whom this conflict had broken out. It caused a serious scalp laceration down to the skull of the victim and an underlying depressed skull fracture.

25. The offender's sentence for the murder for which he is now before the Court is not to be increased by any of his past offending and in particular not by the details of the subsequent reckless wounding on 8 September 2001. However, the events of his long criminal history and the commission of that further offence after he knew that he had killed a man by stabbing him on the evening of 25 July have a significant bearing upon what I can conclude with respect to his prospects of rehabilitation and the risk of him reoffending.

26. A further aspect of significance arising out of the wounding offence on 8 September is that he was arrested for it on 6 October 2021 and remained in custody bail refused until he was sentenced for that offence on 18 May this year. The sentence imposed was 2 years and 9 months with a non‑parole period of 1 year and 8 months, commencing from the date of his arrest. In the time that he has been in custody since 6 October 2021 the offender has served out that non‑parole period. The sentence that I will impose for the murder will be fixed to commence from 6 October 2022 which means that he will have served 1 year of the time that he has been in custody solely referable to the reckless wounding offence. The balance of 1 year and 9 months of the sentence for the wounding will be concurrent punishment for the wounding and for the murder.

27. The primary significance of the criminal record that I have dwelt upon at some length is that it disentitles the offender from lenience. It substantially offsets the consideration that might otherwise be given to him for the disadvantages that he suffered in early life, which have undoubtedly contributed to his descent into the state of alcoholism, drug abuse and criminality that he was in when this murder was committed.

28. Dr Pusey has concluded that the offender suffers from a major depressive disorder, from anxiety disorders, possibly from post‑traumatic stress disorder, from antisocial personality disorder and from substance use disorders. Dr Pusey’s principal report was prepared on 26 March 2023 for the sentence proceeding in relation to the reckless wounding. He provided an updating report of today's date which narrates information gathered in an audio visual link consultation with the offender that took place today. In that consultation the offender reported that he hears voices and he described phenomena that are suggestive of some degree of psychosis, although that has not been reliably diagnosed. The offender’s current description of symptoms has led to the psychologist's assessment that he is suffering deep depression and pervasive and severe anxiety.

16. In passing sentence, I will take into account the severe disadvantage that the offender suffered in his early life. I will take into account the lasting effects of him having witnessed domestic violence, suffered emotional neglect and missed out on family nurturing, stability in formative years and education. I will take into account his allegation, which I will treat as factual for present purposes, that he suffered sexual abuse in juvenile detention that has had lasting adverse effects upon his self‑esteem and character.

17. I make allowance for the fact that the offender’s long‑term resort to drug abuse should not be regarded as entirely a matter of his own choice. He is a person whose early disadvantages may be considered to have driven him to escapes of that nature. I take into account as part of the offender’s subjective background the mental conditions to which Dr Pusey has referred. There is no basis upon which I could find that those mental disorders were causative of the offending conduct, in such a way as to reduce moral culpability, and they are not of a type or magnitude that would make imprisonment significantly harder on the offender than it is on the general population of inmates. The offender’s mental conditions do not reduce the need for specific and general deterrence in my view.

18. There must be balanced against all of these considerations the fact that at the age of 39, when this murder was committed, there had been 20 years of adult life over which it might reasonably have been expected that at some point Raymond Allen would have taken a grip, exercised some measure of agency over his own behaviour, sought help and given sufficient thought to other human beings to cause him to refrain from carrying out yet another robbery. I say “yet another” bearing in mind that he was convicted and sentenced in South Australia for two robberies with violence. It would be reasonable to have expected that by 25 July 2021 the offender would have reflected upon the significant terms of imprisonment that he has already received for violent crimes of this nature, totalling six years in South Australia; that he would have recognised the escalation in his own conduct and taken a step back from the infliction of harm upon fellow human beings.

19. Without any compensating history of serious attempts at self‑correction and normalisation of his life, the offender’s long and worsening criminal history substantially cancels out the lenience that might otherwise have been accorded to him on account of his seriously disadvantaged early background. The need for specific deterrence of the offender remains significant in the sentencing exercise. The consideration of general deterrence, also, is not made irrelevant by his personal circumstances.

20. The charge was defended on the basis of self‑defence which the jury has excluded beyond reasonable doubt. I am not satisfied that the offender has shown any genuine remorse. Dr Pusey noted in his report of 26 March 2023 that the offender expressed a degree of remorse with respect to the wounding offence. Whatever such professions the offender may have made I am not satisfied that he realises or accepts the gravity of his conduct in relation to this murder. From his evidence in the trial and his instructions to Dr Pusey I find the offender to be self-focused, self-excusing, blaming and lacking empathy. I am not satisfied that I can take into account any genuine remorse on his part.

21. Dr Pusey has referred to the offender’s prospects of rehabilitation in the following terms.

Mr Allen's ability to address the current and historical factors relating to his ongoing experience of mental health pathology is in my view essential to any type of recovery process. In particular, any attempt to reduce his risk of criminal recidivism. Supporting his ability to process his historical and current experiences of trauma in order to reduce their influence on his cognitive decision making, emotional coping and processing responses, and to support his ability to engage in more consequentially based prosocial thinking and decision making is essential to any attempt to continue to try to lower his potential risk of recidivism in the broader community.

35. That view is expressed in the scientific terminology of psychology. I take from it the simple proposition that any prospect of being rehabilitated and avoiding return to offending upon his release is dependent upon Mr Allen obtaining psychological assistance, for which he would have to have a will. Regrettably, in the formation of my view about sentence in this case, I can discern no present indication that the offender has the will to address his problems in a way that would not involve drug consumption and further crime.

36. In view of the length of the sentence that must be passed, I do not dismiss entirely the prospect of the offender obtaining, prior to his release, sufficient assistance in addressing his psychological problems that may be able to stabilise his life when he eventually returns to the community.

37. I have been urged to find special circumstances that would warrant reducing the ratio of the non‑parole period in the sentence that I am about to pass to less than the default ratio of 75%. In view of the long term of imprisonment that this murder calls for, the period of parole after the offender becomes eligible will be a significant number of years, ample for Community Corrections to supervise reintegration to the extent that that can be achieved. I do not consider that there is a need to extend the duration of parole by reducing the non‑parole period. I do not find any other special circumstance, except that the ratio in the sentence for the offence of murder that is now before the Court should be adjusted as necessary to achieve an appropriate ratio in the overall continuous term that the offender will serve, taking into account the sentence for reckless wounding that commenced on 6 October 2021. The judge who imposed that earlier sentence found special circumstances on the material then before the court and adopted a ratio of 60%. The sentence that I will impose will have a non-parole period shortened by some months so as not to extinguish entirely the effect of that earlier determination. As a result the ratio in the overall term of imprisonment will be slightly less than 75%,

38. I have been urged to take into account the sentence that was passed on Dean Vimpani. That sentence was reduced by 25% to take account of his plea of guilty to the charge. He was convicted and sentenced for murder on the basis that he had been in a joint criminal enterprise with the offender to carry out the robbery and that, according to the doctrine of extended common purpose, he was liable in murder because he had foreseen the possibility that the infliction of grievous bodily harm might result from the way in which the robbery was to be carried out.

39. It follows that Dean Vimpani was sentenced on a basis very different from, and of very significantly less objective seriousness than, the basis upon which I am to sentence this offender. Before the discount for his plea of guilty, Vimpani's sentence would have been the 17 years and 4 months with a non‑parole period of 12 years. Vimpani's subjective circumstances were similar to those of the offender. The objective seriousness of the offender's conduct, he being the one who foresaw the inevitability of violence and carried the knife with intent to use it if necessary, is very much greater than that for which Vimpani received his penalty.

40. For these reasons, the sentence that I impose upon you, Raymond Allen, for the murder of David McArthur is as follows.

You are sentenced to imprisonment for 22 years commencing on 6 October 2022, and expiring on 5 October 2044 with a non‑parole period of 15 years and 9 months, expiring on 5 July 2038.

The earliest date you will be eligible for release to parole is 5 July 2038.

At the expiration of your sentence, you will be subject to the Crimes (High Risk Offenders) Act 2006 (NSW). Your counsel or solicitor will explain to you the impact of that Act, and its meaning for your situation when your sentence is concluded.

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Decision last updated: 05 December 2023