R v Dennison

[2010] NSWSC 780

CITATION:	R v Dennison [2010] NSWSC 780
HEARING DATE(S):	19 March 2010
JUDGMENT DATE :	16 July 2010
JUDGMENT OF:	Fullerton J
DECISION:	Sentenced to an effective term of imprisonment of 28 years to date from 29 October 2008 and to expire on 28 October 2036 with a period of 21 years to be served in custody before eligible to be considered for release to parole on 28 October 2029. (See para 89 for details)
CATCHWORDS:	CRIMINAL LAW - sentence - murder - eighteen further counts involving detention, robbery and sexual assault - deceased died from injuries sustained while attempting to escape from offender - Form 1 offences - four victims - guilty plea - applicability of principles in R v Fernando in relation to Aboriginality of the offender - drug addiction - principle of totality
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CATEGORY:	Sentence
CASES CITED:	Aslett v R [2006] NSWCCA 360 Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146 Maxwell v R [2007] NSWCCA 304; 177 A Crim R 498 Pearce v R [1998] HCA 57; 194 CLR 610 Postiglione v R [1997] HCA 26; 189 CLR 295 R v Bavadra [2000] NSWCCA 292; 115 A Crim R 152 R v Fernando (1992) 76 A Crim R 58 R v Finnie [2002] NSWCCA 533 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Janceski [2005] NSWCCA 288 R v McEvoy [2010] NSWCCA 110 R v Reyes [2005] NSWCCA 218 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 Royall v R [1991] HCA 27; 172 CLR 378
PARTIES:	The Crown Brendan David Dennison (Offender)
FILE NUMBER(S):	SC 2009/11292
COUNSEL:	P Ingram (Crown) J Stratton SC (Offender)
SOLICITORS:	Director of Public Prosecutions (Crown) Legal Aid Commission (Offender)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

FULLERTON J

16 JULY 2010

2009/11292 R v BRENDAN DAVID DENNISON

REMARKS ON SENTENCE

1 HER HONOUR

: On 4 December 2009 the offender, Brendan David Dennison, entered pleas of guilty to an indictment containing nineteen counts. Objectively the most serious is the first count which charges that on 26 October 2008 he murdered LW. The remaining eighteen counts involve the detention, robbery and sexual assault of LW and three of her friends, XX, JH, and TH, in rented premises over the course of several hours on the same date.

2 On 19 March 2010 the offender was re-arraigned in respect of one count to which he also entered a plea of guilty.

3 The first count on the indictment attracts a maximum penalty of life imprisonment. A standard non-parole period of 20 years is prescribed pursuant to the provisions of Div 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Act”).

4 Counts 5, 6, 7, 8, 9, 12, 13 and 14 charge a series of aggravated sexual assaults involving the deceased, LW, and TH. These offences are laid contrary to s 61J(1) of the Crimes Act 1900. In each of the eight counts the circumstance of aggravation is the threatened infliction of actual bodily harm by means of a knife. They each attract a maximum term of imprisonment of 20 years with a standard non-parole period of 10 years. The indictment also includes four counts of detaining for the purpose of sexual gratification each of the four victims, contrary to s 86(1)(b), attracting a maximum term of imprisonment of 14 years for each count and two counts of threatening harm with intent to have sexual intercourse contrary to s 61K(b).

5 The balance of the counts on the indictment include one count of recklessly causing grievous bodily harm to TH, contrary to s 35(2), attracting a maximum term of imprisonment of 10 years with a standard non-parole period of 4 years; one count of break and enter with intent to commit a serious indictable offence, namely aggravated sexual assault, contrary to s 113(2), attracting a maximum term of imprisonment of 14 years; and two counts of robbery while being armed with an offensive weapon, contrary to s 97(1), each attracting a maximum term of imprisonment of 20 years.

6 I have also been invited to take into account a total of eight offences on three separate Form 1’s, one each relating to the deceased and two of the three surviving victims, in accordance with the approach mandated by the Court of Criminal Appeal in Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146. These offences comprise a further three counts of aggravated sexual assault, contrary to s 61J and three acts of indecency, contrary to s 61N, each attracting a maximum term of imprisonment of 18 months; one count of indecent assault, contrary to s 61L, attracting a maximum term of imprisonment of 5 years; and one count of inciting an act of sexual intercourse without consent, attracting a maximum term of imprisonment of 20 years, it being an offence charged at common law.

The evidence tendered on sentence

7 The evidence tendered by the Crown included an agreed statement of facts, a transcript of an interview between police and the offender conducted on 29 October 2008, and the police statements of the surviving victims, XX, JH and TH. I have also received into evidence victim impact statements from XX and the deceased’s parents.

8 The offender tendered reports from Dr Olav Nielssen, forensic psychiatrist, and Mr John Taylor, clinical psychologist, together with a number of personal references from family members. I also received into evidence a letter addressed to me from the offender. He did not give evidence.

The facts for sentencing purposes

9 On the basis of the agreed facts the following facts are established for sentencing purposes.

10 On 26 October 2008, at approximately 12.30pm, XX was walking to visit her friend, JH, at a unit in Waterloo she had been renting for six months. Both women, aged respectively 19 and 20, were studying in Australia. XX was the holder of a student visa and JH the holder of a business migration visa granted to her family. LW and TH were also aged 19 and students of the same college. They were also residing in the unit.

11 XX pressed the intercom and JH activated the unlocking mechanism inside the unit allowing her to enter the building. She opened the security door and approached the lift. The offender followed her through the security door and into the lift.

12 XX pressed the button for level 6, three floors above the ground level. As the lift was travelling up to level 6, the offender produced a knife from his clothing, similar in appearance to a fruit paring knife, put his arm around XX’s shoulder, pointed the knife towards her throat and demanded money.

13 When the lift arrived on level 6, the offender positioned himself behind XX, directed her out of the lift and along the length of the hallway to the unit, walking behind her with his arm around her shoulder and with the knife pointed toward her neck. At this time, JH was standing inside the doorway holding the door open to greet her friend.

14 When they reached the doorway, the offender demanded to know how many people were inside the unit. XX handed the offender a $50 note and asked him not to hurt her friend. The offender took this money. This conduct grounds count 3 on the indictment, namely robbing XX whilst being armed with an offensive weapon, contrary to s 97(1) of the Crimes Act.

15 The offender then directed XX to enter the unit whilst maintaining his hold of her. He continued to point the knife at her neck. The offender then forced both young women further into the unit at knife point. This conduct grounds the fourth count on the indictment, namely a break and enter with intent to commit a serious indictable offence, namely aggravated sexual assault, contrary to s 113(2) of the Crimes Act.

16 Elsewhere in the unit at that time were LW who was standing at the kitchen bench preparing some food, and TH who was returning to the living area along the hallway from the bathroom.

17 Having manoeuvred the women further into the unit, the offender walked directly into the kitchen where he removed four knives, varying in length between 10 and 20 centimetres, from a knife block located on the kitchen bench. He selected one knife with a large blade of approximately 20 centimetres (hereinafter “the larger knife”) and placed the paring knife (hereinafter “the smaller knife”) into a pocket of his shorts. He was also armed with a screwdriver in the front of his shorts.

18 The offender directed all four victims at knife point from the kitchen area to sit on a mattress in the living room. There, he again demanded to know how many people were present in the unit. He was informed that the two other residents were at work.

19 The offender directed TH to remove his clothes so he could see his body. The offender was at this time within a metre of TH, waving the larger knife and jabbing it at his chest.

20 Fearing for his safety, TH complied and removed his t-shirt and shorts. Once TH was completely naked, the offender instructed him to lie on his stomach. When the offender demanded to know from TH who his girlfriend was, LW raised her hand in response.

21 While brandishing the larger knife, the offender forced the three women to walk to the side of the lounge room and remove their clothing. Each of the women complied by removing their outer layers of clothing, leaving only their underwear. The offender then moved toward JH and used the smaller knife to cut her underwear from her body. He then did the same to both LW and XX.

22 The offender demanded that all the women turn, face away from him and place their hands on an adjacent table. They each complied. The offender then approached JH, produced a syringe and told her to open her legs. He then placed his hand between her legs and onto her inner thigh. He then moved away from JH and approached LW and dragged her towards the middle of the living room. At this time he had his shorts pulled slightly down exposing his semi-erect penis. The offender directed LW to fellate him and pushed her down toward the floor. He removed the larger knife from his shorts and placed it close to her head for a number of minutes as she was forced to fellate him. This grounds the fifth count on the indictment and the first of eight charges of aggravated sexual assault laid contrary to s 61J(1) of the Crimes Act.

23 The offender then forced all four victims at knife point into JH’s bedroom where they were directed to sit on the bed. JH and XX sat at the head of the bed in the foetal position attempting to cover themselves with bed clothing whilst LW and TH sat on the foot of the bed.

24 The offender pointed the larger knife at LW and directed her to kiss him. When he leant over to have her kiss him, the offender placed his hand between her legs and inserted a finger into her anus. This is the first offence on the Form 1 relating to LW.

25 The offender then directed TH to kiss him. When he objected, the offender brandished the larger knife, threatening him with it. Fearing for his safety, TH leant forward and kissed the offender on the lips. This is the first offence on the Form 1 relating to TH.

26 The offender then directed TH to fellate him at knife point. This offence grounds the sixth count on the indictment, namely aggravated sexual assault laid contrary to s 61J(1) of the Crimes Act. He then permitted TH to leave the bedroom to switch off some kitchen appliances. The offender stood at the doorway of the bedroom and watched as TH went to the kitchen, after which he was directed to return to the bedroom where he was compelled, at knife point, to lie down on the bed on his stomach with his legs hanging over the side of the bed. The offender then directed LW to position herself so that she was sitting on TH’s back, facing his feet. While positioned in this way, the offender engaged in cunnilingus on LW while tapping the blade of the larger knife on TH’s buttocks. This is the second offence on the Form 1 relating to LW.

27 After a few minutes, and whilst LW was still seated on TH’s back, the offender licked TH’s anus while continuing to tap the larger knife on his buttocks. This is the second offence on the Form 1 relating to TH, charged as an assault with an act of indecency against s 61L of the Crimes Act.

28 The offender again approached LW and, while still armed with the larger knife, inserted his fingers into her vagina. This is the third offence on the Form 1 relating to LW. He then directed her to get off TH’s back and to fellate him again for a number of minutes as he continued to brandish the larger knife. This grounds the seventh count on the indictment and the third of eight charges of aggravated sexual assault laid contrary to s 61J(1) of the Crimes Act.

29 Thereafter, while TH was still lying on his stomach on top of the bed, he inserted one of his fingers into TH’s anus. The offender then repeatedly forced his finger into TH’s anus saying he wanted to cut him. This caused TH immediate pain. This grounds the eighth count on the indictment and the fourth charge of aggravated sexual assault. The offender eventually removed his finger from TH’s anus and stood to his feet.

30 Still armed with the larger knife, the offender again approached LW and compelled her to fellate him a third time. This grounds the ninth count on the indictment and the fifth charge of aggravated sexual assault.

31 In an attempt to placate him, TH asked the offender what he wanted. Whilst still armed with the knife the offender said to JH and XX who remained huddled together on the bed, “I want to fuck you one by one”. This grounded the tenth and eleventh counts on the indictment, namely threatening to inflict actual bodily harm on both women with intent to have sexual intercourse with them, contrary to s 61K(b) of the Crimes Act.

32 TH then asked the young women if they had any money. He located a wallet in a handbag and removed $120 from it. He offered the money to the offender, who told him to place it on the bed. When TH put the money on the bed, the offender brandished the larger knife at TH and told him to again lie down on his stomach. TH complied by lying on the floor beside the bed.

33 The offender then compelled LW to lie on her back on the bed, after which he repeatedly inserted the handle of the larger knife into her vagina causing her to cry out in pain. This grounds the twelfth count on the indictment and the sixth charge of aggravated sexual assault.

34 The offender then inserted his penis into LW’s vagina and engaged in penile/vaginal intercourse. This grounds the thirteenth count on the indictment and the seventh charge of aggravated sexual assault. When TH attempted to intervene, the offender brandished the larger knife and told him to get back down. Fearing serious injury, TH complied and lay on the bed.

35 The offender then compelled LW to fellate TH. This is the fourth offence on the Form 1 relating to LW and charged as an incitement of sexual intercourse without consent at common law. The offender kissed TH a number of times on the mouth whilst LW continued to fellate TH for a number of minutes.

36 The offender then directed XX to touch LW’s vagina. This grounds the first offence on the Form 1 relating to XX, and is charged as inciting an act of indecency.

37 The offender then directed XX and JH to fellate TH. Neither of the women complied with this direction, remaining huddled together at the head of the bed.

38 The offender then again engaged in penile/vaginal intercourse with LW for a number of minutes, grounding the fourteenth count on the indictment, namely the eighth count of aggravated sexual assault laid contrary to s 61J(1) of the Crimes Act.

39 Whilst sexually assaulting LW, the offender directed TH to kiss both XX and JH. This grounds the third offence on the Form 1 relating to TH and is charged as inciting an act of indecency. TH pretended to comply with this direction and leant toward the two women, but instead whispered to them his intention to take the knife from the offender. TH suggested that they should attempt to take his screwdriver. They succeeded in disarming the offender however he immediately responded by removing the smaller knife from his shorts and pressing it against LW’s neck. He directed TH to put the larger knife down. TH refused and collected three further knives from the kitchen bench in an attempt to defend himself, and the women, against further assaults.

40 The offender followed TH to the kitchen, dragging LW. He had one of his arms placed around her neck and the other holding the smaller knife toward her throat. XX and JH barricaded themselves in the bedroom and placed a number of telephone calls to emergency services for help.

41 As the offender was dragging LW into the lounge room she managed to break free of his grip and ran toward a closed balcony door. TH threw a knife toward LW for the purpose of her arming herself against the offender. The offender approached TH holding the smaller knife in front of him, and started to jab it in TH’s direction. He responded by thrusting his own knives toward the offender in an effort to defend himself. The offender then picked up a glass plate and threw it at TH striking his left cheekbone below his eye. LW picked up a chair and threw it at the offender in an effort to disarm him and run for help. She was unable to reach the front door but managed to open the sliding door onto the balcony. She scaled the balcony wall, climbed over the top railing and positioned herself so that she was suspended outside the balcony, holding onto the railing with both hands. Hearing her cries for help, and in a valiant effort to prevent her from falling, TH also climbed over the balcony wall and lowered himself until he was also suspended outside the balcony, holding onto the railing with both hands. LW remained suspended for a short period of time, apparently trying to swing herself onto the balcony of the unit below, but before TH could reach her she fell 12.5 metres to the concrete pavement at street level. She suffered severe injuries including extensive fracturing of the vault of the skull and transection of the brain stem. She died at the Royal Prince Alfred Hospital a short time later. This grounds the charge of murder.

42 After LW fell from the balcony, TH also attempted to swing himself onto the balcony of the unit below. However, upon swinging his body and releasing his grip for that purpose, he also fell to the concrete pavement landing a short distance from where LW lay fatally injured. He said that when he hit the ground he could hear breaking sounds from within his body. He was conscious and in severe pain. As a result of the fall he suffered a number of injuries including a fractured pelvis, a fractured vertebra, a fracture to the left side of the sacrum, fractures to a number of bones of the right ankle and right foot and a severe injury to the left wrist. This conduct grounds the second count on the indictment, namely that the offender recklessly caused grievous bodily harm to TH, contrary to s 35(2) of the Crimes Act.

43 TH was taken to the Royal Prince Alfred Hospital where he underwent an open reduction of the fracture to the right foot, a manipulation under anaesthesia of the left wrist and a variety of other procedures and treatment for his injuries. He remained in hospital until his discharge on 1 December 2008.

44 XX and JH remained barricaded in the bedroom having moved a bed and desk in front of the door to stop the offender re-entering the room. Despite their efforts, the offender succeeded in pushing the door so that it was ajar and demanded money. JH threw her wallet out through the bedroom door. The wallet contained $120 in cash and some personal identification documents. This conduct grounds the fifteenth count on the indictment, namely robbery while armed with an offensive weapon contrary to s 97(1) of the Crimes Act.

45 The offender left the unit soon after.

46 On the arrival of police, XX and JH removed the barricade and emerged from the bedroom. A crime scene was established and forensic examinations were undertaken. Extensive canvassing and interviewing of witnesses enabled police to isolate the offender on CCTV footage as he entered and left the unit complex.

47 Upon the offender’s forced entry to the unit LW, TH, XX and JH were each detained against their will, at knife point, for the purpose of the offender’s sexual gratification. This conduct grounds the sixteenth, seventeenth, eighteenth and nineteenth counts on the indictment, each laid contrary to s 86(1)(b) of the Crimes Act.

48 The offender was arrested at about 8.15pm on 29 October 2008, walking along Castlereagh Lane at Redfern. He was taken to the Redfern Police Station where he participated in an electronically recorded interview during the course of which he agreed that he had informed arresting police that on the weekend of the offence he had been supplied with 50 measures of the drug “ice”. He also agreed that he had also told police that he had used some of the drug but did not know what happened thereafter. He claimed that “…it wasn’t meant to go like that, it got out of control…”. When asked whether he agreed that he had also told arresting police that he had said words similar to “I didn’t kill her, they’re saying she jumped, that’s not my fault…”, the offender declined to further participate in the interview.

The victim impact statements

49 XX describes the impact of the offending on her daily life. She speaks of being constantly anxious and preoccupied with her general safety to the extent that she freezes up whenever approached by an unknown male on the street. She describes how when she is at home alone with all the doors securely locked she feels worried and unsafe. She says that she is unable to detail what happened in JH’s apartment that day because it is too distressing to relive the events. She says that on a number of occasions since the offending she has had nightmares from which she wakes screaming.

50 The parents of the deceased live in China and forwarded their letter from there. The deceased’s mother, describes her daughter as an angelic, clever and compassionate girl who loved Australia and the freedoms it provides. She says she never imagined her daughter would die in such a sudden and grotesque manner, in the prime of her life. She describes how since losing her daughter she has cried every night and is constantly haunted by the happy memories they shared together. Her health has deteriorated to the point of being hospitalised three times, compounding the family’s loss when their family shop was destroyed in the 2008 Szechuan earthquake.

51 I extend my sympathies to LW’s family and give account to their grief and loss and the impact of the offences upon XX to the extent permitted me by the law. While I would ordinarily direct that a copy of these sentencing remarks be translated and forwarded to LW’s family in China, I refrain from so doing lest it aggravate their suffering due to the need for the circumstances of their daughter’s death to be summarised in these sentencing remarks as a matter of public record.

The offender’s subjective circumstances

52 The offender is 28 years old and was 26 at the time of the offending. He was born in Queensland but raised on an Aboriginal reserve at Boggabilla in northern New South Wales. His parents were from Aboriginal communities located along the border between the two states. His early life was described as mostly happy until, at the age of nine, he saw his father die from a heart attack. His father was 29. After his father’s death his mother became depressed and spent a significant amount of time at the local hotel and often brought men back to the family home. The offender told Dr Nielssen that it was at this time that he was also subjected to sexual abuse by a cousin and by his father’s sister. He said his mother punished him physically when he tried to report to her the sexual interference by family members. He and his sister were ultimately taken into the care of their paternal grandparents.

53 The offender was an average student at primary school but was frequently suspended for breaches of discipline and bad behaviour. He was eventually expelled in Year 7 for punching a teacher. He did not return to school. It would appear that despite the love of his grandparents and what they describe as people in the community who wanted to help him, the offender became progressively more difficult to control and manage. He soon came under the adverse influence of his peers and ultimately the attention of the juvenile justice system. He spent extended periods in juvenile justice facilities from age 14 for property offences including break, enter and steal, which gravitated to aggravated robbery followed by repeated breaches of extended supervision in the community.

54 In January 2002 he was sentenced to imprisonment in the Local Court for a series of driving offences, larceny and an assault occasioning actual bodily harm and, a few days later, was sentenced in the District Court to an extended term of imprisonment for maliciously inflicting grievous bodily harm. It would appear that within months of his release to parole he again reoffended. In May/June 2005 he was sentenced in the District Court to imprisonment for assault occasioning actual bodily harm and possession of a weapon (a knife) with intent. He was released from custody but within days was again charged with driving offences and resisting police and was remanded in custody. Thereafter he was sentenced for a range of relatively minor property offences, none of which involved violence. He was released at the expiration of all sentences in June 2008. Four months later he was arrested in respect of the offending for which he is to be sentenced today. He has been in custody since the date of his arrest.

55 The offender’s only period of consistent employment was at the age of 18, installing air conditioners. It was at that time he formed a relationship from which he has a daughter. The relationship ended when the offender was again sentenced to imprisonment. He has not seen his daughter since she was an infant.

56 He told Dr Nielssen that although he has been released to conditional liberty from time to time, both as a juvenile and after first being sentenced to imprisonment in 2002 as an adult offender, he has drifted from place to place and that his abuse of alcohol and illicit drugs has invariably been associated with him reoffending. It would appear that after his release from custody in June 2008 he was again without any permanent residence and little prospect of gaining employment. He was in receipt of social security benefits.

57 He told Dr Nielssen that in the weeks following his release from prison in June 2008 he was also in poor physical health after contracting a staphylococcus infection in prison and that he was suffering from an outbreak of boils over most of his body with aching joints and fever. His treatment with antibiotics and opiate-based pain relief was noted in his general practitioner’s clinical notes. He was also prescribed an antidepressant medication. In the clinical notes of 21 October 2008 there is a record of a letter being prepared for what is described as “a mental health plan” but no copy of that letter is included with the notes, or the identity of person to whom it was written.

The offender’s drug use and its relevance to the offending and to sentence

58 The offender began smoking cannabis and drinking alcohol from the age of 12 or 13. In Dr Nielssen’s opinion, this is directly related to the entrenched substance abuse disorder first diagnosed in June 2009. He told Mr Taylor that he has used drugs consistently since a teenager when he was not in custody. While he told Dr Nielssen that he first used amphetamines at the age of 15 but did not inject that drug or heroin, he told Mr Taylor that he began to use amphetamines at 17 and that he injected heroin daily to help him sleep after periods of extended amphetamine use until he was sentenced to imprisonment in 2002. He also admitted to having tried cocaine and MDMA but that his preference was for amphetamines.

59 He told both Mr Taylor and Dr Nielssen that he also regularly used methylamphetamine, a concentrated form of amphetamine, or its street name “ice”, and in the months after his release from prison in June 2008 he was habitually using that drug. He said he became dependent on the drug to keep motivated after his release from custody in circumstances of his poor physical health, homelessness and unemployment. On 29 August 2008 he was admitted to the psychiatric ward of Concord Hospital for treatment for a drug induced psychosis. He was sedated and released the following morning without referral or treatment. He told Dr Nielssen he has no recollection of being admitted to the hospital but confirmed his escalating use of “ice” at this time. He said that when he woke in the hospital he thought he was back in prison.

60 He also told Dr Nielssen that while he was unable to remember whether he had taken any drugs on the day of the offending, he had been injecting amphetamine most days the previous week, and had little sleep.

61 On 3 November 2008, after his arrest, he was assessed by Justice Health following his self report of paranoia and auditory and visual hallucinations. No symptoms of mental illness were noted but emotional lability and hyper vigilance were noted. Since his return to custody he has been maintained on methadone, a moderate dose of an antipsychotic medication and an antidepressant. It would appear that his acceptance of methadone in the treatment of his drug addiction is the first time the offender has sought intervention for his drug use. He reported to both Mr Taylor and Dr Nielssen that he has not previously participated in any drug detoxification or drug rehabilitation programs in custody or in the community. It is not clear whether this was because of resistance or intransigence on his part, or whether he has simply been overlooked as a candidate for intervention by custodial or community based services.

62 The offender was assessed by Mr Taylor in March 2009 as having borderline intellectual functioning which, together with instability in his family relations and retarded emotional development, rendered him vulnerable to substance abuse at an early age. I have already noted that in June 2009 he was diagnosed by Dr Nielssen as suffering from a substance abuse disorder but without any pattern of psychotic symptoms consistent with drug induced schizophrenia. Dr Nielssen regarded the offender’s consistent account of amnesia for some days before the offences and afterwards as explained by sustained heavy amphetamine use.

63 In his letter to me the offender says he does not remember anything that happened on the day of the offending and that he does not want to remember or know what he did because he is so horrified by what his lawyers have told him is the evidence in the case against him. He does however accept full responsibility for what he has done and asks me to accept that he is deeply sorry for the pain and suffering he has caused each of the victims and their families.

64 Aside from Dr Nielssen’s observation that amphetamine use is known to be associated with increased sexual excitement and a propensity to aggressive behaviour, there was no specific evidence tendered as to the precise pharmacological effects of sustained use of “ice” or other amphetamine based drugs over years, or its concentrated use over days or weeks. Rather, I was invited to take judicial notice of the regrettably all too frequent observations of sentencing courts of the link between the effects of this drug and aggressive and often uncharacteristic violent offending, including sexual offending, of which R v Reyes [2005] NSWCCA 218 and Aslett v R [2006] NSWCCA 360 are just two examples.

65 Having regard to the offender’s aboriginality and his subjective circumstances I have been invited to apply the principles in R v Fernando (1992) 76 A Crim R 58 when imposing sentence. Given the very grave criminality for which he is to be sentenced I am of the view that these principles have limited application. In the sentences to be imposed for each of the individual sentences I will, however, make some allowance for the fact that after the death of his father and his effective abandonment by his mother at a vulnerable age, he resorted to alcohol and drugs and, despite concerted attempts from the Aboriginal community to counsel and guide him, he became estranged from his community and from his sister and grandparents. He is reported by a family friend as saying that he believed nobody cared for him and with this attitude (borne no doubt from unresolved feelings of abandonment and his youth) he sought the company of offending peers and the anaesthetising effect of drugs. Over the last ten years he has become progressively institutionalised such that he has failed altogether, it seems, to secure permanent housing or employment for the relatively short periods of time he has been at his liberty before drifting back into a cyclical pattern of offending driven by his drug addiction.

66 I am unable to disregard the offender’s drug addiction or his habitual use of “ice” in the days before the offending, as wholly irrelevant to an assessment of the overall objective criminality of the offences for which he is to be sentenced. In particular, I regard the range and extent of his sexual offending as likely to be best explained by the effects of “ice”, given that his prior record, despite its length, does not indicate any propensity to sexual violence. I do not consider, however, that this mitigates his criminal responsibility for the reign of sexual terror the victims were subjected to, despite the use of the drug being suggestive of opportunism in the sexual offending, given that I regard the robbery of XX, by which he gained entry to the unit, was likely to have been primarily motivated by his need for money to feed his drug addiction and that the robbery of JH was perpetrated upon leaving the unit for the same reason. The fact of his drug addiction is not, however, a mitigating factor per se of any weight in the sentencing exercise. That said, in accordance with the principles articulated by Wood CJ at CL in R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [272]-[274], I accept that his capacity for exercising judgment was probably severely compromised by being in the grips of the drug “ice” on the day of the offending, and that the origins of his drug addiction was when he was unable to exercise appropriate judgment or choice because of his youth and family circumstances.

67 In March 2010 Dr Nielssen reported an improvement in the offender’s psychiatric condition and his compliance with the pharmacological regime instituted by Justice Health since his remand. While the florid effects of his amphetamine use have abated, excessive concern with his personal hygiene, a likely reaction to his past drug use, was noted.

68 Dr Nielssen was unable to provide any meaningful estimate of the risk of the offender committing further offences upon his eventual release given the likely length of the sentence. He did note, however, that despite the lack of success of previous attempts at custodial rehabilitation, the offender’s basic literacy and intelligence places him in the lower half of the normal range of intelligence, rather than in the borderline mentally retarded range, which could assist him to meaningfully participate in rehabilitation programs in custody. He also expressed to Dr Nielssen what Dr Nielssen regarded as sincere remorse and horror at his conduct, which could be the basis for self-reflection and eventual rehabilitation.

69 Despite these views, I am unable to find as mitigating factors under s 21A(3)(g) or (h) of the Sentencing Act that his prospects of rehabilitation are good or that he is unlikely to reoffend.

The application of the principle of totality

70 I am conscious of the need for an appropriate sentence to be imposed for each of the nineteen offences on the indictment before consideration can be given to concurrency or accumulation, and before “the stepping stage” process of the commencement dates for the individual sentences is applied (see Pearce v R [1998] HCA 57; 194 CLR 610; R v Finnie [2002] NSWCCA 533). In R v Janceski [2005] NSWCCA 288 at [21] the Court of criminal Appeal was concerned to emphasise that where there are multiple offences committed against multiple victims in the one course of criminal conduct, it is wrong to consider the sentencing process as related to a single course of criminal offending which has created multiple victims, and to regard that as an aggravating factor under s 21A(2)(m) of the Sentencing Act, while imposing concurrent sentences.

71 That said, application of the principle of totality in this case requires that some of the individual sentences in respect of the offences committed against some of the victims are shortened, with some sentences attracting fixed terms and some to be served wholly concurrently with others to avoid the double counting that would inevitably result given the large number of substantive sexual offences and the fact that an intent to secure sexual gratification or commit a sexual offence is an element of other offences. (I note that in considering which sentences might properly attract a fixed term that it is only those which are not standard non-parole period offences that are susceptible to the operation of s 45 of the Sentencing Act.) Were there not some telescoping of the individual sentences in this way the inevitable result would be an extremely long sentence of crushing proportion. For this offender, a feeling of hopelessness would be inevitable effectively neutralising any prospect of his rehabilitation upon his eventual release or the prospect of him engaging meaningfully in prison based programs in the interim.

72 The totality principle also requires that those sentences that are to be partially accumulated, and the resulting aggregate sentence and non-parole period, is a just and appropriate measure of the total criminality involved in the commission of all offences (see Postiglione v R [1997] HCA 26; 189 CLR 295 at 406 per McHugh J) while at the same time ensuring that the effective sentence meets the different sentencing objectives in s 3A of the Sentencing Act.

73 It was not submitted that special circumstances exist in this case to justify a variation in the statutory ratio between the aggregate or effective non-parole period and the balance of term, although there may be some need to vary the individual sentences to ensure that ratio is maintained overall.

The sentence for murder, the first count on the indictment

74 Section 19A of the Crimes Act specifies the maximum penalty for murder is imprisonment for life. The Crown did not submit that a life sentence should be imposed in this case. I accept that concession.

75 The offence of murder is, however, an offence to which a standard non-parole period of 20 years is prescribed pursuant to the provisions of Div 1A of Part 4 of the Sentencing Act. The law provides that this is the non-parole period which is to be imposed after trial for offending in the mid range of objective seriousness, unless there are aggravating or mitigating factors justifying a greater or lesser non-parole period, relative to the standard non-parole period of 20 years as a reference point (see Maxwell v R [2007] NSWCCA 304; 177 A Crim R 498 at [18]).

76 As the Court of Criminal Appeal has very recently had occasion to emphasise in R v McEvoy [2010] NSWCCA 110, the legislature has provided a structure by reference to which a sentence for a standard non-parole period offence is to be passed. In this case that obliges me to clearly articulate the reasons why, in my assessment, the objective seriousness of the particular offending in those offences falls within, above or below the mid range of offending. The concept of objective seriousness was considered in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [85]:

"The multiplicity of purposes of sentencing set out in s 3A of the Act … do not suggest a narrow perspective as to the range of facts and matters that are to be regarded as "objective" facts and matters which may affect the judgment involved in assessing "seriousness". It is too narrow a perspective to confine attention to the physical acts of the offender and their effects, as those acts or effects could be observed by a bystander. The inquiry which we consider to have been intended is one that would take into account the actus reus, the consequences of the conduct, and those factors that might properly have been said to have impinged on the mens rea of the offender…”

77 The plea of guilty is not a factor that affects objective seriousness, although it is a matter which permits departure from the imposition of a standard non-parole period.

78 In this case LW’s murder is not accompanied by either of the alternate mental states recognised in s 18(1) of the Crimes Act. Rather, his liability for her death is as a consequence of his detention of her and his infliction of a sustained course of sexual violence upon her over the course of some hours such that that her attempts to escape from the apartment from which she fell to her death were a natural consequence of his conduct (see Royall v R [1991] HCA 27; 172 CLR 378 at 404-405).

79 Despite the difficulty in hypothesising upon the abstract, or putative, offence in the middle of the range of objective seriousness for a murder committed in the rare circumstances in which LW met her death, I consider the objective seriousness as within the mid range, given the reign of terror and the serious violence she was subjected to and from which she attempted to make her escape, and the horror she must have experienced in the minutes before she fell to her death, knowing she was about to fall from a considerable height with the certainty of serious injury, if not death. The fact that the offender did not intend to kill her (or perhaps did not even know that she had fallen) does not ameliorate the objective seriousness of the offending, although it does serve to appoint the offence as towards the lower end of mid range offending for murder given that an intentional killing may be properly located within the mid range of objective seriousness depending upon the particular circumstances of the case under consideration. The fact that the sexual violence inflicted on LW inside the unit from which she attempted to escape before falling to her death has attracted additional substantive charges for which the offender is also to be sentenced, does not detract from the objective seriousness of the murder, although it will result in only partially accumulated sentences between those six counts and the murder to avoid the risk of double counting. The seriousness of the murder is aggravated under s 21A(2)(eb) of the Sentencing Act by the fact that LW fell from the balcony of her own home.

80 In determining the appropriate sentence for the murder of LW relative to the standard non-parole period of 20 years as a reference point, I take into account in mitigation the fact that the offender is genuinely remorseful as provided for in s 21A(3)(i) and that his plea of guilty was entered on arraignment under s 21A(3)(k) of the Sentencing Act.

The plea of guilty

81 While it cannot be said that in these circumstances the pleas were entered at the earliest opportunity, in the absence of any information as to the process by which the indictment was ultimately settled, I regard a 20 per cent discount for the plea of guilty as appropriate in the calculation of each of the individual sentences. In this case the pleas of guilty have significant utilitarian value not only because of the very great number of offences charged on the indictment, and the separate offences on the Form 1’s, but because it avoided the necessity for a lengthy trial where the surviving victims would have been required to relive the horror of their exposure to the offender’s criminal conduct.

The sentences for the aggravated sexual assaults

82 The same principled approach needs to be made to the sentences to be imposed on each of the five counts of aggravated sexual assault were LW was the victim and the two counts where TH was the victim since each offence attracts a standard non-parole period of 10 years. The particulars of the sexual assault differed between counts and between victims (although in each case the feature of aggravation was the same, namely the use of a knife), in that four counts involved fellatio (where both victims were required to fellate the offender) and the remaining counts involved penile penetration of LW’s vagina, the use of a knife handle to penetrate her vagina, and the digital penetration of TH’s anus. All offences involved grave violations of the victims in the presence of each other, and in degrading and humiliating ways. The penetrative offences also caused both victims intense pain. That said, I regard counts 12 and 13, the penetration of LW’s vagina first with the handle of the knife and thereafter with his penis, and the digital penetration of TH’s anus in count 8 as objectively more serious than the fellatio they were each forced to provide, and towards the upper end of the mid range of objective seriousness given the duration of the penetrative assaults and the pain that both victims suffered in the process. The only factor aggravating the offending under s 21A(2) of the Sentencing Act is under s (eb), namely that the assault occurred in the home of both victims, since the threatened infliction of actual bodily harm by means of a knife was particularised as the aggravating factor in each count. I have already made reference to the proper approach to s of 21A(2)(m) in the circumstances of this case.

83 In imposing sentence in respect of count 6, the aggravated sexual assault on TH by forced fellatio, and count 13, the aggravated sexual assault on LW by penile penetration of her vagina, I am required to take into account a number of allied sentencing principles. I am obliged to take into account, in particular, the additional fact that the offences on the Form 1, particularly in regard to count 13 on the indictment, constitute serious and additional offending of the same kind as that charged on the indictment. While this does not operate to render the offending objectively more serious, it does serve to increase the penalty that would otherwise be imposed for the offending charged on indictment, and by a measure appropriate to the level of seriousness for those offences I am invited to take into account.

84 In R v Bavadra [2000] NSWCCA 292; 115 A Crim R 152 Wood CJ at CL said:

"[30] When serious offences are included in a Form 1, the sentence imposed, in respect of the count for which they are taken into account, must reflect the totality of the criminal involvement. It is not the case that Form 1 offences need only be noted in passing, or that little by way of additional penalty should be imposed by reason of their existence: Morgan (1993) 70 A Crim R 368 at 372 per Hunt CJ at CL.

[31] There is a considerable advantage to the administration of justice, and to accused persons, for a partyfacing sentence to clean up the record. For that purpose the Form 1 procedure is beneficial. The objective of individual rehabilitation can be advanced by its use, since the offender does not face the prospect of further trials. There is a utilitarian value in the admission of guilt that is involved so far as there can be a saving of the resources of the law enforcement agencies and the courts concerned. Additionally, the sentencing judge is placed in a position where it is possible to sentence the offender for the totality of his or her outstanding criminality to that point. However, unless proper weight is given to the additional offences that have been disclosed, this procedure fails its true purpose."

85 In determining the appropriate sentence for each count of aggravated sexual assault, relative to the standard non-parole period of 10 years as a reference point, I take into account, in mitigation, the fact that the offender is genuinely remorseful and that his plea of guilty was entered on arraignment.

Recklessly causing grievous bodily harm to TH

86 This is charged as the second count on the indictment. It is subject to a standard non-parole period of 4 years. Having regard to the circumstances in which this offence was committed as detailed in [42] above, and the fact that by his plea the offender accepts that he averted to the risk that because of his conduct TH may seek to escape over the balcony of the unit and/or go to the aid of another who was seeking to escape by the same route, and the serious nature of the injuries that TH suffered, I regard the offending as above mid range in objective seriousness and, as such, and despite the plea of guilty and the fact that the offender is remorseful, the imposition of a sentence including a non-parole period slightly longer than the standard non-parole period is warranted.

The remaining offences including those where XX and JH were the victims

87 Neither XX nor JH were sexually assaulted although they were both threatened with harm at knife point as the offender voiced his intentions to have sexual intercourse with them. That conduct attracted a charge under s 61K(b) of the Crimes Act in counts 11 and 15 which carries a maximum sentence of 20 years imprisonment. In imposing sentence on count 11 (the charge involving XX) I also take into account an offence under s 61N(2), namely incite an act of indecency on the Form 1 as detailed in [36] above. The offending, whilst serious given the fact that it occurred whilst the young women were witness to the sexual assaults being committed successively against LW and TH, was momentary and no actual harm was occasioned.

88 Both XX and JH were also robbed at knife point attracting charges under s 97(1) of the Crimes Act which also carries a maximum sentence of 20 years imprisonment. In so far as that offending is concerned, the charge where XX was the victim is marginally more serious than the charge where JH was the victim, since it was the offender’s targeting of her as she approached the unit block, and his detention of her in the lift before she gave him $50 at knifepoint as he marched her to the door of the unit, that facilitated the criminal rampage that followed and which culminated in the robbery of $120 from JH before the offender left the unit.

Sentences

89 Brendan David Dennison the sentences I impose are as follows:

1. In respect of count 4 (a charge of aggravated break and enter with intent to commit an aggravated sexual assault contrary to s 113(2) of the Crimes Act , where each of TH, JH and LW were named as victims being residents of the unit broken into) I sentence the offender to a fixed term of 3 years to date from 29 October 2008 and to expire on 28 October 2011. (The reason that a fixed sentence is imposed for this offence is in order to ensure compliance with the principle of totality in the overall context of the sentencing order in this case.)

2. In respect of counts 16, 17, 18 and 19 (respectively breaches of s 86(1)(b) of the Crimes Act where each of the victims was detained for the purposes of sexual gratification) I impose concurrent and fixed terms of imprisonment of 4 years to date from 29 October 2009 and to expire on 28 October 2013. The fixed term is imposed for this offence for the same stated reason as above.

3. In respect of count 3 (a charge of armed robbery contrary to s 97 of the Crimes Act where XX was the victim) I sentence the offender to a fixed term of 3 years to date from 29 October 2009 and to be served wholly concurrently with the sentence imposed on Count 4. The fixed term is imposed for this offence for the same stated reason as above.

4. In respect of the balance of the offending where XX is the victim, namely count 11 (threatening her with a knife with intent to have sexual intercourse contrary to s 61K(b) of the Crimes Act ) and after taking into account the offence of inciting an act of indecency on the Form 1, I impose a fixed term of imprisonment of 4 years to date from 29 October 2009 which is to be served concurrently with the sentences imposed on counts 16, 17, 18 and 19. The fixed term is imposed for this offence for the same stated reason as above.

5. In respect of count 10 (a charge of threatening JH with a knife with intent to have sexual intercourse contrary to s 61K(b) of the Crimes Act ) I impose a fixed term of 3 years and 6 months to date from 29 October 2009 and to be served concurrently with the sentence imposed on count 11. The fixed term is imposed for this offence for the same stated reason as above.

6. In respect of the balance of the offending where JH is the victim, namely count 15 (a charge of armed robbery contrary to s 97 of the Crimes Act ) I impose a fixed term of imprisonment of 4 years to date from 29 October 2009 and to be served concurrently with the sentence imposed on count 11. The fixed term is imposed for this offence for the same stated reason as above.

7. In respect of count 2 (a charge of recklessly causing TH grievous bodily harm contrary to s 35(2) of the Crimes Act ) I impose a sentence of 7 years comprised of a non-parole period of 4 years and 6 months to date from 29 October 2010 and to expire on 28 April 2015 with a balance of term of 2 years and 6 months to expire on 28 October 2017.

8. In respect of the balance of the offending where TH is the victim, namely counts 6 and 8 (two counts of aggravated sexual assault contrary to s 61J(1) of the Crimes Act ), and after taking into account three further sexual offences on the Form 1 in respect of count 6, I impose the following sentences:
i. In respect of count 6 a sentence of 12 years comprised of a non-parole period of 8 years to date from 29 October 2011 and to expire on 28 October 2019 and a balance of term of 4 years to expire on 28 October 2023.
ii. In respect of count 8 a sentence of 11 years comprised of a non-parole period of 7 years and a balance of term of 4 years to date from 29 October 2011 to be served wholly concurrently with the sentence imposed on count 6.
9. In respect of the offending where LW was the victim, namely six counts of aggravated sexual assault (namely counts 5, 7, 9, 12, 13 and 14) and after taking four further sexual offences on the Form 1 into account in respect of count 13, I impose the following sentences:
i. In respect of count 13, I impose a sentence of 14 years comprised of a non-parole period of 10 years to date from 29 October 2016 and to expire on 28 October 2026 and a balance of term of 4 years to expire on 28 October 2030.
ii. In respect of counts 5, 7, 9, 12 and 14, I impose concurrent sentences of 12 years for each count, comprised of a non-parole period of 8 years and a balance of term of 4 years to date from 29 October 2016 to be served wholly concurrently with the sentence imposed on count 13.

10. In respect of count 1 (namely the murder of LW) I impose a sentence of 18 years, comprised of a non-parole period of 11 years to date from 29 October 2018 and to expire on 28 October 2029 with a balance of term of 7 years to expire on 28 October 2036.

11. Accordingly, you are sentenced to an effective term of imprisonment of 28 years to date from 29 October 2008 and to expire on 28 October 2036 with a period of 21 years to be served in custody before you are eligible to be considered for release to parole on 28 October 2029.
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