R v Bailey

[2018] NSWSC 411

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v Bailey [2018] NSWSC 411
Hearing dates:	23 March 2018
Date of orders:	05 April 2018
Decision date:	05 April 2018
Jurisdiction:	Common Law - Criminal
Before:	Garling J
Decision:	(1)   For the offence of the murder of Guy Henderson, I impose a sentence of imprisonment comprising a non-parole period of 15 years and 9 months with a balance of term of 5 years and 3 months to commence on 23 July 2016.  (2)   You will not be eligible for release on parole before 22 April 2032.
Catchwords:	SENTENCING – one offence of murder – mid-range of seriousness – early guilty plea – self-induced intoxication – diagnosed mental disorders – Autism Spectrum Disorder – Attention Deficit Hyperactivity Disorder – Oppositional Defiance Disorder – aggravating factor – offence occurred in the home of the girlfriend of the victim – mitigating factors – offence was spontaneous and unplanned – remorse – no special circumstances – importance of general deterrence and punishment
Legislation Cited:	Crimes Act 1900 Crimes (High Risk Offenders) Act 2006 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Madden v R [2011] NSWCCA 254 Markarian v R [2005] HCA 25; (2005) 228 CLR 357 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Texts Cited:	Not Applicable
Category:	Principal judgment
Parties:	Crown Dylan John Bailey (Offender)
Representation:	Counsel: T McCarthy (Crown) E Wilson SC (Offender)   Solicitors: Director of Public Prosecutions (Crown) Legal Aid NSW (Offender)
File Number(s):	2016/222546
Publication restriction:	Not Applicable

REMARKS ON SENTENCE

1. On 23 July 2016, the offender, Dylan John Bailey, murdered Guy Henderson at a house at Hermitage Flat.

2. He did so after an argument between them developed into a physical fight. In the course of that fight, the offender punched the deceased to his head and face until he was unconscious. After bystanders attempted to remove the offender from his position on top of the deceased and told him to leave the deceased alone, the offender returned to where the deceased was lying and continued to physically assault him by punching him to the head many times. He then took a toaster from the kitchen bench and struck the deceased in the face with the toaster.

3. Finally, the offender reached for a large hunting knife which he had brought to the house, and stabbed the deceased several times to the chest. Initially, no penetration occurred, but following the removal of a leather sheath from the knife the offender stabbed the deceased six more times to the torso. This final attack caused death.

4. The offender was arrested by the police on that evening and has been in custody ever since. When he was before the Bathurst Local Court on 30 October 2017, the offender pleaded guilty. When first arraigned in the Supreme Court on 9 February 2018, he maintained that plea of guilty.

5. It is now time for the offender to be sentenced for his crime.

6. The maximum penalty for the offence of murder is life imprisonment: s 19A of the Crimes Act 1900. A standard non-parole period of 20 years applies.

7. The maximum term of imprisonment and the standard non-parole period are guideposts to which a court must have regard in imposing a sentence: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27]. The standard non-parole period is not the starting point for an offence falling in the mid‑range of objective seriousness: Madden v R [2011] NSWCCA 254 at [35].

The Statutory Regime

8. The Parliament of New South Wales has fixed in s 3A of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Act”), the purposes for which a court may impose a sentence on an offender. Those purposes are: to ensure adequate punishment of an offender; to prevent crime by deterring the offender and others from committing similar offences; to protect the community from the offender; to promote the offender’s rehabilitation; to make the offender accountable for their actions; to recognise the harm done to the victims of the crime and the community; and to denounce publicly the conduct of the offender.

9. These purposes obviously overlap and are often in tension: Muldrock at [20]. The purposes of ensuring adequate punishment of the offender and promoting the offender’s rehabilitation, for example, are not always compatible. None of the purposes of sentencing can be considered in isolation.

10. Section 21A of the Sentencing Act also requires the Court to take into account, where relevant, a number of aggravating and mitigating factors in determining an appropriate sentence. The legislation does not require the Court to increase or decrease a sentence because of the presence or absence of these factors: s 21A(5) Sentencing Act.

Common Law Principles

11. Over time, the courts have developed legal principles to guide the exercise of the sentencing discretion by judges. These common law principles are to be found in decided cases.

12. In summary, the common law principles include proportionality, namely, that the sentence should be proportionate to the gravity of the offence; parity, namely that the imposition of sentences on co-offenders must not give rise to a justifiable sense of grievance on the part of one co-offender; totality, that is that the Court when considering a number of offences must impose a sentence which appropriately reflects the totality of the criminal behaviour; and avoidance of double punishment, that is that a person should not be punished twice for the same conduct.

13. These common law principles have continuing relevance because s 21A(1) of the Sentencing Act preserves the entire body of judicially developed sentencing principles: Muldrock at [18]. As well, factors established by the common law as being relevant to sentence, such as whether incarceration may be particularly burdensome, are also to be taken into account: Muldrock at [19].

14. What the sentencing task requires of a judge is that they have regard to the relevant legislation, including the purposes of sentencing, the statutory guideposts of the maximum penalty and the standard non-parole period, and the aggravating and mitigating factors, as well as the principles of the common law. Against that legal framework, the sentencing judge has to identify, and discuss the significance of, all the relevant factual circumstances of the offending and the offender. The sentencing judge is then in a position to undertake an “instinctive synthesis”, whereby the judge “makes a value judgment as to what is the appropriate sentence given all the factors of the case”: Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [51]; Muldrock at [26]. As the “instinctive synthesis” approach to sentencing embodies a value judgment, there is no such thing as a single correct sentence.

15. I will bear in mind the legislation by which I am bound and the common law principles developed by the courts when proceeding on the task of sentencing the offender.

The Facts

16. The offender is to be sentenced on the basis of a Statement of Agreed Facts. Here is a summary of those facts.

17. The murder occurred at approximately 9.25pm on 23 July 2016 at a residence at 8 Davy St, Hermitage Flat, near Lithgow (“the house”). This was the home of Kathryn Usherwood, who was in a relationship with the deceased, Guy Henderson.

18. At about 12 noon, the offender and his partner, Savannah Clifford-Marsh, arrived at the house. They had driven from Padstow to visit Ms Usherwood. Also present at the house were two other male friends of Ms Usherwood, Hopper and Dolan.

19. After the offender and Ms Clifford-Marsh arrived, the group began to play a card game. During this time, the offender went outside and retrieved a large hunting knife from his vehicle. He returned to the house and showed it to the deceased, who removed the knife from its leather sheath and looked at it. The offender then took the knife back and replaced the sheath. It was put to one side.

20. Ms Clifford-Marsh and the offender shortly afterwards left the house and drove to some shops in Lithgow, where the offender purchased a bottle of gin. Upon returning to the house, the group consumed alcohol for a considerable period of time. At some point, the offender and the deceased walked to the back gate of the property and spoke for 30 or 40 minutes before returning to the house. At this point, Ms Clifford-Marsh formed the view that the offender was intoxicated. The offender and the deceased continued their conversation in the house while Ms Usherwood and Ms Clifford-Marsh conversed in another area of the house.

21. A short time later, the deceased and Ms Usherwood argued, and the deceased walked to Lithgow train station to catch a train back to Sydney. The offender went to talk to the deceased about returning to the house.

22. Both men then went to a hotel where they consumed approximately two beers each before returning to the house. Ms Clifford-Marsh formed the opinion that both men were intoxicated when they returned, and stated that the deceased was barely able to stand.

23. The deceased and the offender continued to converse, and the offender then spoke to Ms Usherwood alone for a short period of time.

24. The offender then began to act bizarrely. He appeared agitated and was yelling in what sounded like the German language. He fell over and appeared to be having a seizure or fit whilst kicking Ms Usherwood’s bedroom door. He then physically assaulted both Ms Clifford-Marsh and Ms Usherwood.

25. Ms Usherwood told the offender to go to bed and returned to her bedroom. The offender then entered into Ms Usherwood’s bedroom and yelled at Ms Usherwood and the deceased in what sounded like German. The offender repeatedly requested that the deceased hit him. The deceased refused, but the offender insisted. The deceased then slapped the offender across the face with an open hand. The offender told the deceased to slap him again, and the deceased complied.

26. A short time later, the offender was seen to have pinned the deceased to the kitchen floor with his body weight and was repeatedly punching the deceased’s head and face. The deceased could not move and fell unconscious.

27. Dolan, Hopper and Ms Clifford-Marsh attempted to pull the offender away but were unable to do so. The offender eventually stopped hitting the deceased and got up and hit Ms Clifford-Marsh in the face. She told him to leave the deceased alone and he again hit her in the face, causing her to trip over.

28. The offender returned to assaulting the deceased and punched him in the head a number of times. He struck the deceased with a toaster from the kitchen bench and then retrieved the large hunting knife that he had brought to the house from the kitchen bench. He stabbed at the deceased’s chest several times but did not penetrate the deceased as the sheath remained on the knife. The offender then removed the sheath and stabbed the deceased’s upper body six times.

29. The offender was pulled away from the deceased and then was seen to stagger and collapse near the back door. He sat with a smile on his face. Following a 000 call, police and ambulance promptly arrived.

30. Neighbours and police heard the offender crying and yelling about what he had done, including the statement “I’ve killed him, I wanna die.” Police requested that the offender come out with his hands up in the air. The offender was crying and yelled “just kill me.” The Police observed him to be incoherent and smelling strongly of liquor. He surrendered and was arrested.

31. Whilst in the Police vehicle, the offender told Police that he had stabbed the deceased about “six times with a 22-inch knife.” He also, somewhat bizarrely, told Police that he was a mercenary and that he had killed 46 people.

32. At around 3 o’clock the next morning, 24 July 2016, the Custody Manager at Lithgow Police Station formed the view that the offender had sobered up. The offender was informed of his rights and told the Custody Manager that he was “very intoxicated earlier tonight” and that he “could not remember much about it.”

33. At 5.20am the offender was interviewed by Police. This interview was recorded. He told the Police that he had drunk nearly a whole bottle of gin, and that he had not consumed any alcohol in a period of 10 years before that night. The offender told Police that he did not remember killing the deceased and only had flashes of memory from the night, including having blood on his hands.

34. The offender also told Police that he regarded the deceased as his friend and that they had never had a problem before. He told Police that Ms Usherwood and the deceased’s mother would be extremely upset by the deceased’s death.

35. A post-mortem revealed that the deceased’s cause of death was a stab wound which penetrated the entire left upper chest and left lung and exited through the deceased’s back. This lead to haemorrhage into the airways, effectively blocking the lungs. The dimensions of the wound were consistent with the offender’s hunting knife, recovered from the scene. There were other stab wounds on the offender’s torso and left arm that were significant, but which did not cause death.

36. The deceased also had abrasions and bruising to the face and limbs consistent with the witnessed blunt force trauma inflicted immediately before the use of the hunting knife.

Intention

37. The Crown submitted that the Court would be satisfied beyond a reasonable doubt that the offender had an intention to kill the deceased, Mr Henderson. The offender submitted that, having regard to his extensive history of mental disorder and the nature of the events on the evening in question, that the Court could not be satisfied that the offender had any intention other than that which he has admitted, namely, an intention to cause grievous bodily harm.

38. An examination all of the facts and circumstances points beyond reasonable doubt to the fact that the offender intended to kill the deceased. I draw that inference from, principally, the way in which the assault developed. Initially, there was a very low level physical assault. It quite quickly progressed to the offender being in a dominant position over the deceased, and punching him continuously to the head at a time when he was defenceless and unconscious. He got up off the deceased, but returned and continued to assault the deceased by striking his head and face. This time he used an object which was nearby, namely a toaster. The offender remained in a dominant position against a helpless and vulnerable deceased, who was unconscious. When the offender abandoned his assault on the deceased with the toaster and his fists, he reached for a large hunting knife which was about 22” long. Initially because the sheath was on the knife, any stabbing was ineffectual. So, the offender removed the sheath and then stabbed the victim from his dominant position on six separate occasions. On each occasion the knife penetrated a significant distance into different parts of the deceased’s body. It is during this series of stabbings that the death of deceased was caused. This stabbing was intentional and could only have been intended to kill the deceased who, by that stage, was seriously injured.

39. In combination, and particularly because the offender withdrew the hunting knife from its leather sheath after unsuccessfully attempting to stab the deceased, I am satisfied beyond reasonable doubt that at the time he undertook his actions which caused the death of the deceased, the offender intended to kill him.

The Offender’s Mental Condition

40. The offender was born in October 1988 and is now 29. He grew up in Sydney. He was quite young when his father died, apparently of cancer. He grew up in a house with a step-father, his mother and a younger sister. He attended a special school at Hurstville to Year 10. He had a mixed employment history, but had worked for a considerable period of time with his uncle in a tree-lopping business.

41. The offender was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) in 1994 and started on medication. He had a difficult primary school experience, often being bullied and teased. From about the age of 5 he came under the care of a paediatrician who oversaw his medication prescriptions.

42. Over time the offender was diagnosed with an Oppositional Defiance Disorder and in Year 4 was found to have dyslexia. This particularly affected his writing.

43. At about the age of 12, the offender was diagnosed with depression and Asperger’s Syndrome, which is now referred to as Autism Spectrum Disorder (“ASD”). The offender had a mixed history with treatment. The success of the treatment often depended upon whether he was taking medication and, if so, which medication it was.

44. In the period between about 2007 and 2008, when he was largely unmedicated, the offender developed a significant alcohol habit. In the course of that period he committed a number of relatively minor offences. As a consequence of this, the offender gave up drinking and was not seen by his mother or others to drink very much at all, up until about 2015.

45. The offender is of a high average or superior range of intelligence but is in the borderline to low average range on the working memory index. He has no difficulty in executive functioning. He has a lengthy history of suicidal ideation which is ongoing, although not currently active. Because of his ASD, he has difficulties regulating his emotions and, accordingly, has difficulty quickly inhibiting and appropriately managing the expression of strong emotions. This can manifest as problems with impulse control – including anger and aggression.

46. These are undoubtedly matters that are all relevant to an assessment of the offender’s moral culpability for the commission of this offence. The biggest single impact on his moral culpability is the extent of his intoxication which was, on this occasion, significant. In assessing the offender’s moral culpability, his difficult background, education and childhood must be taken into account and fully allowed for. Clearly, the offender had fewer emotional resources to assist him in determining his behavioural decisions than would a person who was not beset by his mental disorders.

47. I accept the opinion of Dr Samuels, a forensic psychiatrist, that the homicidal aggression displayed by the offender was produced by the effects of alcohol intoxication on a neurologically compromised brain in the context of an underlying aggressive personality. In that context, I am satisfied that the offender’s moral culpability for this offence is diminished. This is to be kept in mind when considering the objective seriousness of the offence.

48. I need also to keep in mind that the offender’s diagnosed mental disorders mean that custodial conditions will be particularly difficult for him. In particular he finds crowds and large amounts of noise distressing. As well, because of his psychiatric condition he is apt to avoid contact with people, or else if he is subjected to forced contact, to react poorly. This will no doubt result in him being picked on by fellow inmates. He will have a much harder time in custody than a person without his psychiatric diagnosis. This is a matter to which I am required to have regard.

Objective Seriousness of the Offence

49. The Crown did not submit that the objective seriousness of this offence was such as to warrant the maximum penalty of life imprisonment.

50. The attack, as I have previously adverted to, was a sustained and violent one by a dominant offender over a vulnerable and helpless victim. The offender intended to kill the victim through the repeated use of a hunting knife.

51. The offender had drunk a significant amount of alcohol on that evening, having refrained from alcohol for a considerable period. Any assessment of the objective seriousness of this offence must keep in mind that the ordinary restraint which a human feels against behaving in this way was probably absent from the offender because he had drunk so much alcohol on that evening. And that alcohol consumption occurred in a person whose capacity to reason to acceptable standards of behaviour was challenged by his psychiatric disorder. I keep in mind my conclusion that the offender’s moral culpability is a diminished one.

49. Nevertheless, I regard the offence as being a most serious one. It was a vicious sustained and senseless attack. Death was caused at a time where the deceased was unconscious and vulnerable, and unable to fight back.

Aggravating Factors

53. The Sentencing Act provides for factors which Parliament has determined as being those which aggravate or else mitigate the appropriate sentence to be imposed.

54. The offence involved the use of a weapon, namely a hunting knife. I have already taken into account the use of the hunting knife in assessing the objective seriousness of the offence. Whilst it is an aggravating factor, it is not appropriate to double-count this factor by also assessing the use of the weapon under s 21A(2)(c) Sentencing Act.

55. The offender has a prior record of committing relatively minor offences. In August 2008, he was charged with assault occasioning actual bodily harm, which was dealt with by the Burwood Local Court by imposing a 2 year supervised bond, pursuant to s 9 of the Sentencing Act.

56. Although this is an offence of serious personal violence within the meaning of the aggravating factors set out in the Sentencing Act, I am not prepared to place any weight upon this assault offence other than to say that his history of past criminal offences means that the offender is not entitled to any leniency in respect of the current sentence.

57. As the Agreed Facts show, this offence was committed in the home where the deceased’s girlfriend, Ms Usherwood, lived. The offender had been invited to that home, together with others, for social reasons. Each person present was entitled to feel safe and secure in the home of one of their peers. The fact that the offence occurred in that home is a matter of aggravation, and will be given appropriate weight.

58. Although there are other matters that could be matters of aggravation, such as that the offence involved the actual or threatened use of violence, I have not taken any of these matters into account as aggravating factors because they are integral to the offence itself: s 21A(2) Sentencing Act.

Mitigating Factors

59. The Sentencing Act provides for a range of mitigating factors. I accept that the offence was not part of a planned or organised criminal activity, but arose spontaneously in the circumstances at the time: s 21A(3)(b) Sentencing Act. This is a mitigating factor.

60. The offender submitted that the objective facts demonstrated that he had been provoked by the victim: s 21A(3)(c) Sentencing Act. I am unpersuaded that there was any provocation by the deceased of the offender. What had occurred between them did not, in my assessment, lead to the offences. What led to the offences was not any reaction on the part of the offender to anything said or done by the deceased but, rather, that in the circumstances, having regard to the offender’s level of intoxication, he was unable to restrain his anger and proceeded in the way he thought he should.

61. Matters which would ordinarily stand in mitigation of any penalty to be imposed would include whether the offender is a person of previous good character and does not have any record (or any significant record) of previous convictions. The offender conceded that neither of these matters can be held in his favour: s 21A(3)(e), s 21A(3)(f) Sentencing Act.

62. The evidence does not permit the Court to find that the offender is unlikely to re‑offend in the future: s 21A(3)(g) Sentencing Act. That is because, having regard to the offender’s mental disorders and his possible treatment for those, it is simply not possible to predict whether or not he will re-offend.

63. Similarly, it is a mitigating factor if the offender has good prospects of rehabilitation: s 21A(3)(h) Sentencing Act. It is simply not clear at the moment what those prospects are. I am unable to make any real findings in that respect.

64. It is a mitigating factor if an offender demonstrates that he is remorseful about his offence: s 21A(3)(i) Sentencing Act. In an interview with Professor Greenberg, a forensic psychiatrist, the offender told him that he did not mean to kill the deceased. He told Professor Greenberg that his actions constituted the biggest mistake of his life, and that he felt bad for the deceased’s mother.

65. There is no doubt, by his words and actions, on the night in question, and what he has told people since, that the offender accepts that he is responsible for the death of the deceased. He has also acknowledged the injury and harm which his actions have caused.

66. To that extent, particularly having regard to the fact of his ASD which makes it difficult for him to identify and discuss emotions, he has provided evidence of his remorse. I take this into account in mitigation of any sentence which may be imposed.

67. The offender submitted that he had provided assistance to the authorities in a way which would justify it being taken into account in mitigation of any sentence: s 21A(3)(m) Sentencing Act. It is true that the offender participated in a full record of interview and, at the time of his arrest, said things which could properly be construed as admissions. He has also pleaded guilty and has agreed to a Statement of Facts being put before the Court.

68. The offender will receive a significant discount by reason of the utilitarian value of his early plea of guilty. The balance of the material relied upon by the offender as giving rise to additional mitigation by way of assistance to authorities does not seem to me to be of a kind which ought result in any increased discount over and above that which is calculated to take account of his early plea of guilty.

69. I note that the fact that the offender was heavily intoxicated at the time, by reason of choosing to drink alcohol himself, is not a matter which the Court is entitled to take into account as a mitigating factor: s 21A(5AA) Sentencing Act. However, the fact of the intoxication can be, and has been, taken into account in considering the fact that the offender’s capacity to exercise judgment was impaired and that the offence was impulsive and unplanned.

Victim Impact Statements

70. The Court heard and read victim impact statements from the family of the deceased and his girlfriend. Those statements made clear that the death of the deceased has caused significant harm and distress to them.

71. Pursuant to s 28(4) of the Sentencing Act, I consider that it is appropriate to take these statements into account. I do so on the basis that the harmful impact on the parents and girlfriend of the deceased is an aspect of the harm done to the community as a whole.

Sentencing

72. In considering the appropriate sentence to be imposed on the offender, I commence with the reminder that the offence of murder involves the criminal taking of a human life. It is a violation of the sanctity of human life, which is a concept at the heart of a civilised community. Any conviction for murder warrants a substantial sentence because the purposes of punishment and general deterrence are of significant importance. Ultimately, the sentence imposed must be one which reflects the gravity of the offence.

73. I am not satisfied that I should make a finding of special circumstances as the law permits: s 44(2) Sentencing Act. In my view, the usual period of parole will be adequate to assist the offender to reintegrate into the community on the completion of his non-parole period. There is no other sufficient reason that has not already been taken into account to find special circumstances.

74. I have discussed all of the facts relevant for sentencing, including the relevant subjective circumstances of the offender. It is now necessary to make a value judgment as to the appropriate sentence to be imposed.

75. The murder was a most serious offence. I determine the appropriate sentence for that offence, prior to any discount for a plea of guilty, as being one of 28 years.

76. However, it is appropriate to recognise and take into account the utilitarian value of the offender’s early plea of guilty and to allow, as conceded by the Crown, a discount of 25% on that sentence so as to reduce that sentence to 21 years.

77. In accordance with the statutory ratio, the offender will be required to serve 15 years and 9 months prior to being eligible for release on parole.

78. The offender was taken into custody on 23 July 2016 and he has been in custody with respect to this offence since that time. His sentence ought commence on that date.

Offence of Serious Personal Violence

79. I am required to warn the offender, which I now do, of the existence of the Crimes (High Risk Offenders) Act 2006, and the fact that that Act applies to the offence of murder, of which he has been convicted, and for which he is about to be formally sentenced. At some future point in time, an application may be made that notwithstanding the completion of his sentence, the offender should continue to be detained, or else that he should be the subject of an extended supervision order impacting upon his liberty.

Sentence

80. Dylan John Bailey, I impose the following sentence upon you:

1. For the offence of the murder of Guy Henderson, I impose a sentence of imprisonment comprising a non-parole period of 15 years and 9 months with a balance of term of 5 years and 3 months to commence on 23 July 2016.

2. You will not be eligible for release on parole before 22 April 2032.

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Decision last updated: 05 April 2018