R v Hill
[2014] NSWSC 1010
•31 July 2014
Supreme Court
New South Wales
Medium Neutral Citation: R v Hill [2014] NSWSC 1010 Hearing dates: 6 June 2014; 18 July 2014 Decision date: 31 July 2014 Before: Bellew J Decision: 1The offender is convicted of the murder of Jakob Owen Brown.
2The offender is sentenced to a non-parole period of 20 years and 6 months imprisonment, commencing on 12 May 2012 and expiring on 11 November 2032, with a balance of term of 7 years imprisonment, commencing on 12 November 2032 and expiring on 11 November 2039.
3The total sentence is one of 27 years and 6 months imprisonment.
4The offender will be eligible for parole on 12 November 2032 and his sentence will expire on 11 November 2039.
Catchwords: CRIMINAL LAW - Murder - Sentence - Where offender pleaded guilty to the murder of the infant son of his de facto partner - Where previous instances of mistreatment by the offender towards the infant - How such instances should be dealt with for the purposes of determining an appropriate sentence
CRIMINAL LAW - Murder - Sentence - Where offender suffering from Post Traumatic Stress Disorder - Where offender also suffering from sequelae of serious physical injuries suffered in previous work accident and motor vehicle accident - Where evidence suggesting inadequacy of treatment since being taken into custody - Relevance of such matters on sentenceLegislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999 Crimes (Sentencing Procedure) Amendment (Family Member Victim Impact Statement) Act 2014Cases Cited: Anesbury v R [2009] NSWCCA 445
Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
R v Abrahams [2013] NSWSC 952
R v Bollen (1998) 99 A Crim R 51
R v JCW (2000) 112 A Crim R 466; [2000] NSWCCA 209
R v Pfitzner [2009] NSWSC 1267
R v Previtera (1997) 94 A Crim R 76
R v Ross [2014] NSWSC 707
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
R v Vachalec [1981] 1 NSWLR 351Texts Cited: Nil Category: Principal judgment Parties: Regina - Crown
Gregory Wayne Hill - OffenderRepresentation: Counsel:
Mr C Maxwell QC - Crown
Mr M Dennis - Offender
Solicitors:
Director of Public Prosecutions NSW - Crown
Mr M Cavanagh - Offender
File Number(s): 2012/150039 Publication restriction: Nil
Judgment
INTRODUCTION
On 11 November 2013 Gregory Wayne Hill ("the offender") pleaded guilty to the murder of Jakob Owen Brown ("Jakob") on 3 March 2008 at The Oakes in the State of New South Wales. The matter had been listed before me on that day for the purposes of determining a number of issues in advance of the offender's trial which had been due to commence on 18 November 2013. At the time of his death, Jakob was 2 years and 7 months of age.
The maximum penalty for murder is life imprisonment (Crimes Act 1900 s. 19A). In light of the fact that Jakob was under the age of 18 at the time of his death, a standard non-parole period of 25 years is prescribed by the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Act"). The decision of the High Court in Muldrock v R (2011) 244 CLR 120; [2011] HCA 39 sets out the approach to be taken when sentencing an offender for an offence in respect of which a standard non-parole period is prescribed.
Victim impact statements were read to the court on behalf of:
(i) Darren Gibson, Jakob's father; and
(ii) Bethanie Gibson, Jakob's sister.
Once again, I take this opportunity of expressing my sympathy to the members of Jakob's family. As I remarked at the time at which the statements were read to the Court, it is to be hoped that the opportunity that Mr Gibson and Bethanie have each been given to provide a statement will assist their process of grieving.
On 1 July 2014, the Crimes (Sentencing Procedure) Amendment (Family Member Victim Impact Statement) Act 2014 ("the amending Act") commenced. The amending Act inserts a new s. 28(4) into the Sentencing Act in the following terms:
"A victim impact statement given by a family victim may, on the application of the prosecutor and if the court considers it appropriate to do so, be considered and taken into account by a court in connection with the determination of the punishment for the offence on the basis that the harmful impact of the primary victim's death on the members of the primary victim's immediate family is an aspect of harm done to the community".
The effect of that amendment is that it abolishes the principle expressed in R v Previtera (1997) 94 A Crim R 76 and R v Bollen (1998) 99 A Crim R 510 regarding the relevance, on sentence, of a victim impact statement by a member of the family of the deceased, dealing with the effect of the death of the victim upon the family.
Clause [5] of Schedule 1 of the amending Act provides that the amendments made to the Sentencing Act shall apply to the determination of a sentence for an offence whenever committed unless, before the commencement of the amendments:
(a) the court has convicted the person being sentenced of the offence; or
(b) a court has accepted a plea of guilty and the plea has not been withdrawn.
I have already noted that in the present case the offender entered a plea of guilty on 11 November 2013. The provisions of the amending Act therefore have no application to the present case. The principles set out in Previtera (supra) and Bollen (supra) continue to apply.
THE FACTS
An agreed statement of facts was tendered on sentence which was in the following terms:
"1. Jakob Owen Brown was born on 8th August 2005. His mother, Tracey Brown commenced a domestic relationship with the offender in March or April 2006.
2. After this relationship began Jakob began to show signs of having been physically abused after occasions when he had been in the sole care of the offender.
3. On 25th September 2006, after Jakob had been left in the care of the offender, he was found with a bruise and swelling to the occipital region of his head and a petechial rash on the face, neck and shoulders. Such a rash is caused by increased venal pressure. No organic or biological cause could be identified.
4. On 17th October 2006, Jakob presented with further petechial and subconjunctival haemorrhages. Dr Dunstan referred Jakob to a Paediatric Haemotologist for further investigation.
5. On 26th April 2007, again after Jakob had been left in the offender's sole care, his mother returned home to find Jakob with bruising and swelling to the head and face and petechial rashes around the head, neck and shoulders and blood in his nappy. No organic cause could be found by treating doctors and specialists.
6. Soon after this, the offender admitted himself to a facility for treatment of his "depression and inability to cope". The offender was so confined from 10th May until his discharge on 6th June 2007. During the period of the offender's confinement, Jakob did not suffer any unexplained injury or rash.
7. Following his discharge from voluntary hospitalisation, the offender did not return to reside with Ms Brown and her children. He lived elsewhere but was a frequent visitor to her home. Ms Brown generally made other arrangements for the care of her children, including Jakob.
8. In February 2008 Ms Brown commenced a TAFE course. On 11th February 2008 the offender had the care of Jakob and Lachlan (the child of the offender and Ms Brown - born 22nd December 2006). Ms Brown had arranged for the offender to care of the children each Monday whilst she attended the TAFE course. 11th February 2008 was the first such occasion. The offender had not had the sole care of Jakob for some time prior to this. When Ms Brown returned home from TAFE in the afternoon, Jakob had injuries to his face and other areas. No medical attention was sought, however Jakob did not attend pre-school on Thursday and Friday of that week. The offender told staff that Jakob had fallen from his bunk bed and hit his head.
9. On or about 29th February 2008 Jakob was taken to pre-school by the offender. This was the first time Jakob had been taken to pre-school since around 8th February 2008. Without prompting from the staff, the offender volunteered that Jakob had "..another fall in the shower last night, so he has lots of bruises and a scratch on his arm." The offender also told the member of staff, Amanda Miller, that Jakob had been biting himself on the arms. After the offender left, Ms Miller and her supervisor, Anne Psegianakis, noted a number of injuries when they removed Jakob's jumper, observing a large bite mark on his elbow which was swollen and bruised. When changing Jakob's nappy later that morning Ms Miller noted an irregular (curved) shaped bruise in Jakob's pelvic area. The staff member and supervisor then checked Jakob more thoroughly and saw what they thought to be a large 'fresh' cut on his shoulder.
3rd March 2008
10. On 3rd March 2008 Jakob was left in the sole care of the offender. Although Ms Brown suggests the offender was not then living with her, Ms Brown left the home around 5.30am to attend TAFE. She left Jakob (and her other children) in the offender's care at this time. Jakob had two older siblings (Bethanie, then aged 8) and (Thomas, then aged 6).
11.The offender took the older children to school before returning to Ms Brown's home with Jakob and Lachlan (aged 15 months). The offender later told police that he spent some time in the backyard with Jakob whilst Lachlan slept.
12. Around midday, the offender told police that Jakob fell forwards onto a gravel path. The offender said that Jakob picked himself up and then continued to follow the offender inside. The offender said that he then heard Jakob cry and turned to see that Jakob had fallen again, onto his back this time on a concrete landing. At about this time, a neighbour heard a very distressed child's cry coming from the direction of the Brown household.
13. The offender said that he monitored Jakob for a while before putting Jakob to bed around 2pm. At that time, the offender suggested that Jakob was "fine".
14.Around 3.45pm the two older children returned home from school. Bethanie found the offender was asleep and went to check on Jakob in his cot. She saw that Jakob appeared sick and he did not seem to be breathing. With some little difficulty she describes, she managed to wake the offender. The offender said that he went into Jakob's room and wiped some blood and vomit away from Jakob's mouth with a face washer. The offender claimed that he then called Ms Brown's mother. Phone records show that this call was not made in fact until 4.37pm. Mrs Brown told the offender to contact the emergency line.
15. Several ambulance personnel responded to the call. Attempts were made to resuscitate Jakob at the scene and en route to hospital. Jakob could not be revived and he was pronounced dead soon after arrival at Campbelltown Hospital.
16. The offender was interviewed by the police. He told police that Jakob had a pre-existing medical condition.
Cause of death
17.Dr Dianne Little, Forensic Pathologist, conducted a post mortem examination upon Jakob's remains on 4th March 2008. She found the cause of Jakob's death to be a massive fracture to the right occipital bone and resultant swelling of the brain. A secondary cause of death identified by Dr Little was a gastric tear which had caused peritonitis. The gastric tear had occurred several hours before death and was not caused by attempts to revive the child.
18.lt is Dr Little's opinion, supported by paediatrician Dr Paul Tait, that Jakob's injuries were not accounted for by the falls described by the offender. The gastric rupture would have required significant force and could not have occurred naturally. This injury would have caused Jakob to be demonstrably unwell and in pain for a significant period prior to his death. This is inconsistent with the offender's assertion that Jakob was 'fine' a few hours before death was confirmed.
19. Jakob also had bruising to his head, bleeding from his penis and an injury to his anus which had been caused very close to the time of his death and which were unconnected to the incidents which caused his significant skull fracture and gastric tear.
20. The medical expert evidence refutes the offender's account of the severity of the injuries which led to Jakob's death. The infliction of blows of sufficient force to cause such injuries to an infant child aged 2 years can only be consistent with an intention to inflict at least grievous bodily harm.
21. The offender inflicted the two major injuries causing death and all of the other unexplained injuries leading up to death.
22. He inflicted the injury to the stomach some time (perhaps hours) before the injury to the head. During this time Jakob would have been in obvious pain which required urgent medical attention. The offender witnessed this suffering and then finally struck him to the head which resulted in his death.
23. The offender then lied to the investigating police about how the injuries were caused".
The Crown also tendered a report of Dr Jane Edwards, Paediatric Forensic Physician, dated 1 October 2013. Dr Edwards' report was obtained at a time when the Crown sought to rely upon the contents of a tendency notice which set out ten prior incidents of injury being occasioned to Jakob between 19 July 2006 and 29 February 2008 for which, on the Crown case, the offender was said to have been responsible. Ultimately however, the Crown's reliance on prior incidents was reduced to the matters referred to in paragraphs (3), (5), (8) and (9) of the agreed facts. Counsel for the offender did not take issue with the proposition that it was open to me to find, beyond reasonable doubt, that the injuries sustained by Jakob on those four occasions were inflicted by the offender.
The Crown relied upon Dr Edwards' report for two purposes. The first, was to support the conclusion that in those previous four incidents Jakob sustained the injuries referred to in paragraphs (3), (5), (8) and (9) of the agreed facts. Those passages of Dr Edwards' report at pp. (4), (6)-(7), (11) and (11)-(12) respectively provide such support.
Although the Crown initially submitted that those four previous incidents aggravated the offending, it was subsequently conceded that to use the evidence in that way would be tantamount to punishing the offender for uncharged acts. It was ultimately agreed between the parties that those previous instances in which Jakob was found to have sustained injury at the hands of the offender did not aggravate the present offending, but operated to deny the offender the leniency to which he might have been entitled had his offending been isolated: see generally R v JCW (2000) 112 A Crim R 466; [2000] NSWCCA 209. I accept that this is the proper approach and have proceeded accordingly.
The second purpose for which the Crown relied upon Dr Edwards' report was to provide further evidence of the cause of Jakob's death. In this regard, the summary of Dr Edwards' opinion at p. 3 of her report included the following:
"At the time of his death Jakob had multiple concerning cutaneous injuries, which were sustained several days prior to his death, some of them were described by the preschool he attended three days before he died. He had other injuries which likely occurred in the perimortem period including widespread facial abrasions and perianal abrasions which remain unexplained. Jakob was found by his seven year old sister, with copious ornasal bleeding and a foreign body in his mouth, around the time of his death. Jakob was also found to have significant recent head injuries (an impact to the right parietal area, an occipital skull fracture and intracranial bleeding) and stomach injury (full thickness tear of the stomach wall with extrusion of stomach contents into the abdominal cavity). Diffuse hypoxic ischemic brain damage was considered to have been the pathological process which ultimately led to his death.
It would seem likely that the head injury occurred after the gastric injury based on the well established inflammatory reaction of peritonitis seen with the gastric injury but not within the skull fracture or subdural haematoma. The nature of his head and stomach injuries indicate Jakob had experienced at least two separate incidents of high impact force, one to the back of his head (and) another to his upper abdomen, in the hours prior to his death. The only incidents which reportedly occurred on the day of his death were two un-witnessed but apparently low force falls, occurring a few seconds apart, described by Mr Hill. Jakob reportedly immediately returned to his feet unassisted and continued to walk after these falls, which is further evidence of their minor nature. Mr Hill reported no concerning symptoms in the two to three hours he reportedly closely observed Jakob following these falls. Therefore, no adequate explanation has been provided to account for the forces required to cause either his head injury or his gastric injury not the expected clinical symptoms which would follow. It is therefore concluded that these injuries were highly likely to have resulted from an inflicted mechanism".
Subsequently, at p. 30 of her report, Dr Edwards said the following:
"Whilst some abdominal injuries can have delayed onset of symptoms and difficulties in diagnosis, the clinical manifestations of gastric rupture are usually quite dramatic. The majority of patients described in the literature presented soon after the injury either in shock (low blood pressure, high heart rate) or with signs of an acute abdomen (severe pain and signs of peritoneal irritation on examination) mainly as a result of the chemical peritonitis induced by the spillage of gastric acid into the peritoneal cavity. Delays in presentation increased the period of peritoneal contamination with undigested food, which led to an increase in morbidity and mortality. Haematemesis (blood stained vomiting) was described. With prompt surgery, prognosis for a full recovery is good.
At the time this injury occurred to Jakob he would have been "winded" and in considerable pain. The extrusion of gastric acid and stomach contents would have occurred over the ensuing few minutes. As mentioned the peritoneal cavity is particularly irritated by the acidic gastric contents. It is unlikely that Jakob would have wanted or tolerated any oral intake after this injury was sustained. The peritoneal irritation would have led to ongoing abdominal pain, worse with movement and it would seem very unlikely that he would have been able to walk around and appear perfectly normal. Jakob reportedly was of a developmental level whereby he could have let his carer know that he had a sore tummy or felt sick. In other words, a caregiver should have been aware that something was wrong with Jakob in the hours after this injury was sustained".
THE OBJECTIVE SERIOUSNESS OF THE OFFENCE
The submissions of the Crown
The Crown submitted that I should find that the objective seriousness of the offence fell above the mid range, and relied upon a number of factors in support of that submission.
Firstly, the Crown relied upon the acts which led to Jakob's death. It was submitted that Jakob died as the result of the infliction of significant blows to two separate areas of his body which Dr Edwards had described as being of "high impact force".
Secondly, the Crown submitted that on the evidence, the abdominal injury was the first in time and that the infliction of that injury must have resulted in Jakob being in significant and obvious distress to the knowledge of the offender. It was submitted that in these circumstances, rather than arrange for medical treatment to be administered to Jakob, the offender chose to inflict a further injury which ultimately led to Jakob's death.
Thirdly, the Crown submitted that the offender must have been aware that Jakob was vulnerable to injury by an adult, and that he committed the offence with that awareness.
The submissions of the offender
In response to the Crown's submission concerning the ferocity of the blows to Jakob's body, and whilst he did not seek to downplay the matter in any way, counsel for the offender submitted that it was not uncommon for an offence of murder to involve the infliction of significant blows upon a victim. The essence of his submission was that at least in this respect, the present case was not markedly at variance with other matters of this nature that regularly come before the Court.
As I understood it, counsel accepted the essence of the Crown's submission that after the infliction of the first blow to Jakob's abdomen the offender would have realised that Jakob was in distress and in need of attention. However, he submitted that it was not open to me to make a particular finding about the degree of the offender's realisation in that respect.
Ultimately, counsel for the offender submitted that the offending fell slightly below the mid range of objective seriousness and advanced two principal matters in support of that submission.
Firstly, it was submitted that the Crown was unable to establish beyond reasonable doubt that the offender acted with an intention to kill Jakob, and that I should find in those circumstances that he had acted with an intention to inflict grievous bodily harm. Secondly, it was submitted that notwithstanding the evidence of earlier instances of the offender's violence towards Jakob, the offending was nevertheless unplanned, and that the whole of the evidence was consistent with sudden anger, and loss of self control, on the part of the offender.
Conclusion
Before considering the submissions of the parties, three matters must be noted.
Firstly, the fact that Jakob was a child is inherent in the offence. However, that circumstance applies to any person under the age of 18 years. At the age of 2 years and 7 months, Jakob was extremely young and substantially less than 18 years of age. Accordingly, his age remains an aggravating factor: R v Pfitzner [2009] NSWSC 1267 at [88].
Secondly, because of his age Jakob was obviously vulnerable. Whilst vulnerability is an aggravating factor pursuant to s. 21A(2)(l) of the Sentencing Act, it is also necessarily a factor which is reflected in the standard non-parole period of 25 years which is prescribed for the offence. Accordingly, it must not be double counted: R v Abrahams [2013] NSWSC 952 at [63].
Thirdly, although the offender's actions necessarily involved a gross breach of trust, the offender was placed in that position of trust by virtue of Jakob's age. In this respect I am again mindful of the necessity to ensure that there is no double (or perhaps even triple) counting: R v Ross [2014] NSWSC 707 at [52].
I am satisfied that the first injury in time was that occasioned to Jakob's stomach. The blow struck by the offender was of sufficient severity to cause a full thickness tear to Jakob's stomach wall. That, in turn, led to the extrusion, or in other words the forced eruption, of the contents of Jakob's stomach into his abdominal cavity. As Dr Little reported, the infliction of that injury would have required the application of significant force.
Dr Little said that as a consequence of sustaining that injury, Jakob would have been "demonstrably unwell and in pain for a significant period". I am satisfied that this was the case, and that Jakob would have been in obvious distress, and in equally obvious need of some form of medical attention, after he had sustained the first injury. In reaching those conclusions, I am fortified by the reference in para. 12 of the agreed facts to a neighbour hearing the cry of a distressed child at the relevant time. I am satisfied that the offender was aware of the fact that he had caused Jakob significant injury.
On the agreed facts, Jakob remained in the condition described by Dr Little for several hours before his ultimate death. As an infant of only 2 years and 7 months of age, Jakob was obviously incapable of obtaining the medical attention he so obviously required without the assistance of an adult. I am satisfied that such circumstances were known to the offender.
The only appropriate response, by any carer, to those circumstances was to ensure that Jakob received help. There is nothing to suggest that the offender was not in a position to obtain medical attention for Jakob. I am satisfied that he could have done so.
For reasons which remain completely unexplained, the offender's response was not to ensure that care was administered. Rather, his response was to cause even more pain to Jakob by inflicting a second blow of sufficient force to cause what Dr Little described as a "massive" fracture to his skull, which ultimately led to his death.
I am satisfied that in acting as he did, the offender did not intend to kill Jakob, but that he acted with an intention to inflict grievous bodily harm upon him. I accept that the offending was not planned or pre-meditated. Whilst the period of time over which the offending occurred might, in relative terms, be regarded as short, it was nevertheless some hours. For the reasons already expressed I am satisfied Jakob would have been in obvious pain during that time.
Moreover, whatever the precise period might have been, two separate and distinct acts of wanton violence were perpetrated by the offender upon a helpless and defenceless infant. Following the first, Jakob was left in pain. Following the second, he was left to die. In acting as he did, the offender showed a callous disregard for Jakob's life.
Balancing all of these considerations, I conclude that the offending falls slightly above the mid range of objective seriousness. In my view, general deterrence is an important consideration in determining the appropriate sentence.
THE OFFENDER'S SUBJECTIVE CASE
The offender was born on 15 July 1974. He is presently aged 40 and was aged 33 at the time of the offending. He was married to his first wife in 1997. There are three children of that marriage, which was dissolved in 2005.
A report from Dr Stephen Allnutt dated 10 July 2014 was tendered in the offender's case on sentence. Dr Allnutt diagnosed the offender as suffering from Post Traumatic Stress Disorder. I have made further reference to Dr Allnutt's report below.
It has been expressly conceded by counsel for the offender that there is no evidence of contrition or remorse. However, the following matters are relevant to the offender's subjective case.
The plea of guilty
I have already noted the time at which the offender's plea of guilty was entered. He is entitled to a discount within a range of 10% to 25% to reflect the utilitarian value of that plea. The timing of the plea is the primary consideration which determines where, within that range, a particular case might fall: R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at 418, 419; [152], [154] and [168](iii) per Spigelman CJ. In the present circumstances I allow a discount of 10%.
The offender's criminal history
The offender has no criminal history. That is a mitigating factor pursuant to s. 21A(3)(e) of the Sentencing Act.
The offender's prospects of rehabilitation
Elizabeth Sheather was called to give evidence in the offender's case. Ms Sheather first met the offender at High School. She remained in casual contact with him after they both left school. In about June 2011 they formed a relationship and from October 2011 until the time of the offender's arrest in May 2012 they lived together, along with Ms Sheather's 13 year old son from a previous relationship. Ms Sheather explained that her son has a number of special needs and that, as a result, he can be "difficult to manage". She gave evidence that in her observations, the offender was caring towards her son, as well as being understanding of, and responsive to, his needs. The essence of her evidence was that at the time of his apprehension, the offender was in the process of developing a good relationship with her son. I accept that to be the case.
Following the offender's arrest Ms Sheather learned of the allegations surrounding Jakob's death. The offender initially told her that Jakob had fallen over. He did not tell her, at least initially, that he was responsible for Jakob's death.
Ms Sheather explained that she and the offender are now engaged. She said that despite being aware of the inevitability of the offender having to serve a lengthy term of imprisonment, she was (to use her words) "not going anywhere". She also gave evidence that her own family was fully supportive of the offender.
Also tendered on the offender's behalf was a letter from Wayne Cook, a Prison Chaplain. That letter included the following:
".... The officers who have seen him from the beginning say of Greg that his attitude has changed (for the positive) and this is very encouraging for his future. I believe that Greg will once again become a productive and positive member of society".
Finally, there is evidence that the offender has undertaken various courses in custody to enhance his literary skills. His efforts in that regard have been variously described by those administering the courses as "enthusiastic", "determined" and "thorough".
The offender has no criminal history. He has chosen, as is his right, not to give evidence before me on sentence. There is no evidence at all which would enable me to determine why it was that he acted in the way in which he did. All of these matters render an assessment of prospects of rehabilitation difficult.
On the evidence, the most that can be said is that the matters referred to in [40], [41] and [43]-[44] point tentatively in favour of the offender's ultimate rehabilitation. However, the evidence does not permit me to arrive at a more definitive conclusion.
The offender's state of health
A large volume of material was tendered on sentence relating to the offender's physical and mental health. That material may be summarised as follows.
On 24 August 2000, in the course of his then employment as a tree surgeon, the offender injured his back, suffering a small central lesion at the L5/S1 level which resulted in a diagnosis of discal damage to the spine. He was referred to a consultant psychiatrist, Dr Subhas, on 2 March 2001. Dr Subhas expressed the view that the offender was displaying symptoms of mixed anxiety and depression, along with chronic pain, secondary to the back injury. Dr Subhas noted that the offender was taking 100 Panadeine Forte tablets each week for the control of pain arising from his back injury. He recommended that the offender be prescribed Efexor, an antidepressant.
The offender continued to undergo treatment for his back injury. Throughout 2002 he underwent pain management treatment which had, as its focus, adjusting to life with chronic pain. After a period of approximately two years, and despite reservations which had originally been expressed, the offender returned to work as truck driver. However, his pain did not abate. In November 2004 he consulted Dr Salmond, a pain medicine consultant, who reported (inter alia) that MRI examination demonstrated a further back injury at L1/2. Doctor Salmon noted that the offender was controlling his pain with Oxycontin and Panadeine Forte and he recommended that this continue.
On 7 July 2005 the offender was involved in a serious motor vehicle accident. As a consequence of that accident, and in addition to his earlier back injuries being rendered more symptomatic, the offender suffered:
(i) an undisplaced fracture at C2;
(ii) fractures of the bodies of T1 and T2;
(iii) pulmonary contusions;
(iv) lacerations to the scalp;
(v) an injury to the left AC joint;
(vi) an injury to the left knee;
(vii) a near full avulsion of the left ear; and
(viii) a depressed fracture of the left orbit.
As a consequence of the injury to his AC joint, the offender underwent a reconstruction of the left shoulder in or about December 2006. A plate which was inserted in the course of that surgery was later removed.
As part of his rehabilitation the offender consulted with Matthew Evans, Psychologist, on 8 March 2007. Mr Evans diagnosed depression, anxiety and stress, each of which he described as being "extremely severe".
Dr Preston, a Consultant Rheumatologist, examined the offender on 12 February 2010. He noted that at that time the offender took a variety of medications including Oxycontin, Effexor, Neurontin, Endep, Temaze, Mersyndol Forte and Imigran. He also reported that the offender presented as being "significantly disabled by persisting pain" before stating:
"In summary, (the offender) was involved in a significant motor vehicle accident from which he sustained multiple trauma. He has had extensive orthopaedic intervention. In addition he has been diagnosed with PTSD and describes ongoing symptoms related to this condition."
When the offender was first taken into custody in May 2012, his then treating General Practitioner, Dr Higginbotham, wrote to Justice Health in the following terms:
"With respect to treatment, the last time I saw this man was 15/2/11 when he was being treated with Efexorrx (sic) 150mg., Physeptone 20mg twice daily and Mogadon for sleep".
The history provided by the offender to Dr Allnutt is generally consistent with that outlined above. However, in addition, the offender told Dr Allnutt that he was diagnosed with depression in 2007 and was admitted to hospital for some weeks. That is consistent with para. 6 of the agreed facts. The offender also told Dr Allnutt that he had self medicated with alcohol in the past in order to cope with his pain levels.
Extracts from the records of Justice Health which were produced on subpoena were also tendered on behalf of the offender. They record what appear to be consistent complaints, by the offender, of significant pain. Further, and although the entirety of the offender's medical records have not been tendered, there is some evidence that the offender has experienced difficulty in obtaining appropriate medical treatment since being taken into custody. For example, on 22 September 2012 he completed a request for medical treatment and stated:
"Have been trying to see the Dr. for four months about pain medication for injuries I have. Have been in constant pain in my neck, back, shoulder knee and also nerve problems in feet, legs, hands and arms".
The material tendered on the offender's behalf also included a clinical note dated as recently as 31 January 2014, which records the following history provided by the offender:
"Pain unchanged, and remains in same spot. Hx #neck, L4/5 disc, presses on nerves, affecting legs, mainly (L) side".
In his report, Dr Allnutt set out what he understood, on the basis of the history provided to him, to be the offender's current regime of medication and pain management. In terms of the offender's psychological condition (that being Dr Allnutt's area of specialty) it was noted that the offender had seen a psychiatrist once since being taken into custody and had been prescribed Avanza. The dosage was not known. In terms of pain medication, Dr Allnutt reported (at p. 6) that the offender was currently taking Tramadol, with little effect.
Dr Allnutt concluded by observing (inter alia) the following (at p. 7):
"Of concern, he said he had made inquiries for ongoing psychiatric follow-up in the correctional environment and had not yet seen a psychiatrist on a regular basis in this regard. Avanza had been prescribed but probably at an inadequate dose. He had seen psychologists on very few occasions. Thus it is my view that he has not yet been engaged in any significant ongoing psychiatric care or treatment or psychological treatment in order to address his anxiety and depression. It would be reasonable to consider that a lack of psychiatric and psychological follow up would compound hardship within custody, relative to other inmates".
Dr Allnutt was not in a position to comment upon the offender's pain levels arising from his physical injuries, or the management of that aspect of his condition. Ms Sheather gave evidence that the offender's pain levels were worse now than what they were when he was first taken into custody. Obviously, her evidence in that regard was based largely, if not solely, upon what the offender had told her. That said, there can be no doubt that the offender has previously suffered a number of serious physical injuries of a kind likely to produce significant pain.
The offender's psychological complaints are of long standing. On the evidence before me, he was first diagnosed with mixed anxiety and depression in 2001. On the basis of Dr Allnutt's report, his psychological condition is ongoing. The fact that he has apparently been prescribed Avanza (an anti-depressant) whilst in custody would tend to reflect an acknowledgment of the part of Justice Health that he has a diagnosed condition which requires treatment. There is medical evidence before me, in the form of Dr Allnutt's report, which raises the question of whether that treatment is adequate. .
The sequelae from the offender's physical injuries are also of long standing. I am satisfied that his pain from those injuries remains significant. As is the case with his psychological condition, the evidence raises a question of whether his current pain management is adequate.
I am also satisfied that since being taken into custody, the offender's access to consultations with medical practitioners, for the treatment and management of both of his conditions, has been limited.
It was not submitted on behalf of the offender that his psychological condition would render him in an inappropriate vehicle for general deterrence. However, subjective matters relating to an offender's state of health may render a custodial sentence more onerous than would otherwise be the case. That is a consideration which is relevant to the determination of an appropriate sentence: R v Vachalec [1981] 1 NSWLR 351 at 353 per Street CJ, Nagle CJ at CL and Lee J agreeing; R v Miranda [2002] NSWCCA 89 at [37] per Dowd J, Sheller JA and Kirby J agreeing; Anesbury v R [2009] NSWCCA 445 at [14] per Grove J, Spigelman CJ and McClellan CJ at CL agreeing. I am satisfied that as matters presently stand, the offender's physical and psychological issues aggravate the hardship of his custody and that this has been the case since he was first taken into custody in 2012.
However counsel for the offender expressly conceded that if, as might reasonably be expected, these issues are properly addressed by Justice Health, any hardship upon the offender will be lessened in the future, and in all probability, substantially so. I accept that to be the case and have taken all of these matters into account.
I am in no position to determine the adequacy or otherwise of the treatment which has been administered to the offender since being taken into custody. However, in circumstances where there is no evidence that the pain levels from his physical injuries have reduced, his present regime of pain medication appears to be substantially less than what it was when he was examined by Dr Preston in 2010. In addition, Dr Allnutt has commented upon the offender's need for psychological treatment, and has questioned the adequacy of the current level of anti depressant medication which is being administered. All of these matters warrant the issue of the offender's ongoing treatment being brought to the attention of those who are responsible for administering it.
In these circumstances, I recommend that the offender's treatment regime, in terms of anti-depressant medication, pain management and psychological intervention, be reviewed by Justice Health as a matter of urgency for the purposes of assessing its adequacy. In the event that the regime which is presently in place is determined to be inadequate in some respect(s), I recommend that a new regime which properly addresses the offender's needs be put in place immediately.
Pre-sentence custody
The offender has been in custody since 12 May 2012 solely in respect of the present matter. In these circumstances any sentence should be expressed to commence on that date.
ORDERS
The offender is convicted of the murder of Jakob Owen Brown.
The offender is sentenced to a non-parole period of 20 years and 6 months imprisonment, commencing on 12 May 2012 and expiring on 11 November 2032, with a balance of term of 7 years imprisonment, commencing on 12 November 2032 and expiring on 11 November 2039.
The total sentence is one of 27 years and 6 months imprisonment.
The offender will be eligible for parole on 12 November 2032 and his sentence will expire on 11 November 2039.
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Decision last updated: 31 July 2014
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