R v Hunt

[2002] NSWSC 66

CITATION:	R v Hunt [2002] NSWSC 66
FILE NUMBER(S):	SC 70047/01
HEARING DATE(S):	12-16/11/2001 19-22/11/2001 24/1/2002
JUDGMENT DATE:	19 February 2002
PARTIES :	Regina Leo Vincent Hunt
JUDGMENT OF:	Dowd J at 1

COUNSEL :	Mr P Barnett- Crown Mr A Parker- Prisoner
SOLICITORS:	Mr H Fitzhardinge- DPP (NSW) Ms R Parker- Prisoner (LAC)
CATCHWORDS:	Murder - Multiple stabbing - Subjective factors - Age of offender - Aboriginality - Health status - Victim's impact statement - Sentencing principles
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Crump (Unreported, NSWCCA, 30 May 1994). R v Dodd (1991) 57 A Crim R 349. R v Elemes [2000] NSWCCA 235. R v Fernando (1992) 76 A Crim R 58. R v Holyoak (1995) 82 A Crim R 502. R v Ibbs (1987) 163 CLR 447. R v L (Unreported, NSWCCA, 17 June 1996). R v Mansour (1999) 29 MVR 409. R v Purdey (1993) 65 A Crim R 441. R v Rushby [1997] 1 NSWLR 594. R v Russell (1995) 84 A Crim R 386. R v Smith (1987) 44 SASR 587. R v Sopher (1993) 70 A Crim R 570. R v Stafrace (1997) 96 A Crim R 452. R v Twala (Unreported, NSWCCA, 4 November 1994). R v Vachalec [1981] 1 NSWLR 351. R v Veen (No 2)(1987-1988) 164 CLR 465.
DECISION:	1. The prisoner is sentenced to serve a term of 14 years imprisonment, to commence on 9 November 2001, and he is to serve a non-parole period of ten years imprisonment to commence on 9 November 2001 and to conclude on 8 November 2011 from which time he will be eligible for parole; 2. It is requested that as far as is possible, the prisoner be allowed to serve his term of imprisonment at Cessnock Correctional Centre; and 3. When the prisoner is released to parole, there should be a longer period of supervision during that adjustment period.

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

DOWD J

19 February 2002

70047/01 R v Leo Vincent Hunt

REMARKS ON SENTENCE

1 HIS HONOUR: The prisoner, Leo Vincent Hunt, pleaded not guilty on 12 November 2001 before a jury to one count in an indictment presented against him at Tamworth, alleging that on 11 June 2000 at Uralla in this State, he did murder Marion Louise Reid. The jury found him guilty.

2 At approximately 8.30pm on Saturday 10 June 2000, a police officer from Uralla Police Station, Constable Styles, was called to a residence at 1/20 Queen Street, Uralla, concerning a domestic altercation and alleged assault. On arrival, Const. Styles spoke to the deceased, Ms Marion Louise Reid (also known as ‘Mary Reid’), who told him that she had been assaulted by her boyfriend, Mr Leo Vincent Hunt, the prisoner.

3 The prisoner was then asked to leave the residence. Prior to leaving, he turned to the deceased and said in front of the police officer,

"If you get another AVO, I'll fucking kill you”.

4 The deceased said that the prisoner had accused her of having an affair with the man in Flat 4 of the building, and that the prisoner had thrown an ashtray at her. In a statement made to the police in relation to the assault, the deceased said that the prisoner had pursued her out of her residence and when he caught her he began hitting and kicking her, continuing to abuse her both physically and verbally for some time.

5 The prisoner was subsequently arrested for assault and taken to Armidale Police Station where he was charged with the assault of the deceased and bailed on the condition that he not approach the deceased. The prisoner was also served with a telephone interim protection order not to approach the deceased. The police informed the prisoner of that order and the bail conditions. Const. Styles then drove the prisoner back to his residence in Uralla at approximately midnight.

6 After being returned to his residence by the police, the prisoner returned to the home of the deceased at 1/20 Queen Street, Uralla. The deceased was then in bed. When confronted by the prisoner, the deceased ran to the Alma Park Caravan Park pursued by the prisoner. She made her way to the office/kiosk area, where the prisoner attacked the deceased with a kitchen knife he had probably picked up at the deceased's home. The prisoner stabbed the deceased in the doorway of the kiosk area. Forensic investigations by the police identified blood spots in the area of the doorway of the kiosk and on the mat directly in front of that door.

7 The deceased kept trying to get away and was making her way to the Bicknell caravan when she was subjected to further stabbing. A blood trail through the caravan park led to where the deceased was found lying dead on the ground.

8 Between 12.40am and 12.44am on 11 June 2000, the Police Service received a ‘000’ call from the prisoner from his own home phone stating that there was an emergency in Uralla. Const. Styles attended the home of the deceased and found the front door wide open with nobody inside.

9 Following the ‘000’ call by the prisoner requesting to speak to the Uralla Police, Constable Hinds at the radio room in Armidale, being aware that the Uralla police were then off duty, called the number from which the prisoner had called. During the conversation between the prisoner and Const. Hinds, the prisoner said:

“I told Marion Reid not to go to the police and get an AVO”.

10 Const. Hinds asked what had happened. The prisoner responded:

“Everything will be understood when you come”.

11 On police attending the home of the prisoner, he was asked as to the whereabouts of the deceased. The prisoner said that he had last seen the deceased in the park and made a comment to the police:

“You obviously don't know what's happened” .

12 The police asked the prisoner to then accompany them to the park where the deceased was found with a knife embedded in her back. The prisoner was placed under arrest. The prisoner said that he had consumed a large quantity of Serepax tablets. The police officer arranged for the accused to be transported to Armidale Hospital for treatment.

13 The deceased sustained multiple stab wounds to the front and back of the upper trunk of her body resulting in her death. Injuries included injury to the chest wall, the ribs, perforation and penetration injuries to the right and left lungs, aorta and heart, with the knife left embedded in the mid back area.

14 Post-mortem examination revealed a 19mm oblique stab wound in the front of the chest, the wound travelling some 130mm into the body of the deceased, passing through the ribs and into the right lung. On the left side of the chest, another 19mm wound travelled some 170mm into the torso, into the left breast, between the ribs and into the left lung. There was a further wound to the chest, irregular in shape, approximately 9mm x 5mm with a depth of about 15mm. All these wounds were consistent with a forceful stabbing action.

15 The post-mortem examination found a 22mm oblique stab wound on the upper back with a track of approximately 100mm, having passed through the chest wall and into the left lung. There was a 24mm stab wound in the left mid back with the knife in situ.

16 Further stab wounds during the post-mortem were identified to the forearms and hands of the deceased, consistent with defensive action. On the ulnar aspect of the left hand was a 57mm longitudinal stab wound, and a further stab wound 18mm in length through the left little finger.

17 Following the prisoner's arrest and during the transfer by ambulance to Armidale Hospital, ambulance officers carried out a neurological assessment on the prisoner using the Glasgow Coma Scale Test to assess the prisoner's neurological status. At this time, the prisoner scored 15 on the Glasgow Coma Scale, the maximum score, and this indicated that he was fully aware, oriented and alert as to person and place.

18 On arrival at Armidale Hospital, the prisoner was admitted to the emergency department where his neurological status was assessed by medical staff. The medical staff had stated that the prisoner was oriented as to place and person on arrival at the emergency department, presenting, however, with some amount of confusion, a decreased sense of consciousness and not completely oriented as to the actual time and sequence of events. This is consistent with a recent overdose of Oxazepam. The prisoner was, however, able to advise medical and nursing staff of his address, his date of birth and other personal particulars.

19 The prisoner had taken an overdose of Oxazepam, approximately 50 tablets of 30mg dosage. The timing of the ingestion of the overdose was an issue in the trial. The blister pack from the tablets was found in the general living room and beside the prisoner's bed, with a glass of water, he having taken off his shoes and socks and leaving them on the floor near the bed. The prisoner had been taking 30mg Oxazepam for some 30 years, and the expert forensic evidence provided to the Court was that the therapeutic levels of Oxazepam would have been between 0.1mg and 0.4mg. A blood specimen taken from the prisoner at 12:00pm on 11 June 2000, indicated an Oxazepam blood reading of 2.2mg which was consistent with the overdose history given by the prisoner.

20 Dr Allender, the forensic scientist for the New South Wales Police Department, discussed at length the process of absorption and the effects of the drug Oxazepam upon a person. Oxazepam is a benzodiazepine drug which, following a normal dose, peaks in the blood plasma after about four hours with the drug persisting in the plasma for up to 48 hours. The effect of taking 50 tablets of 30mg dosage had different pharmacokinetics to a therapeutic dosage because of the bolus effect of the tablets. This is the result of the tablets forming a ball that reduces the surface available to react to the digestive system of the body. The bolus effect actually results in a sustained release with the sedative effects of drowsiness beginning to show within four hours or even sooner. Whilst it was impossible for Dr Allender to give an exact scientific calculation as to when the prisoner consumed the Oxazepam, he estimated that it would have been between midnight and 1:00am on 11 June 2000.

21 Oxazepam produces a disinhibiting effect, causing people to lose their normal learned inhibitions about behaviour. Ingestion results in a loss of co-ordination resulting in ataxic movement, drowsiness and confusion. Some people exhibit what Dr Allender referred to as paradoxical reactions producing acute stimulation or acute excitement. Dr Allender concluded that it was fairly unlikely, however, that the prisoner's acute rage which resulted in the stabbing of his girlfriend, Ms Marion Reid, would have been caused by the Oxazepam.

22 Throughout that night and under constant medical and police supervision, the prisoner began exhibiting the signs and symptoms of an Oxazepam overdose, scoring a Glasgow Coma Scale score of only 10 at 5:00am, at which time medical intervention was required. The acute phase lasted until 7 o'clock in the morning.

23 On discharge from the hospital, the police interviewed the prisoner on 12 June 2000. The prisoner claimed during this interview that he had no recollection of the events of the night of 10/11 June 2000. He could not remember anything and therefore did not wish to participate in any of the proceedings. He did not co-operate with the police at that stage and refused to participate in giving a blood sample to the police for forensic purposes. A sample was later obtained pursuant to s353A of the Crimes Act 1900 (‘the Act’).

24 In evidence from a number of witnesses at the trial, it is clear that the deceased and the prisoner had a long-term association based on mutually shared interests, which was during that time a relationship which fluctuated from a close, attentive and affectionate relationship to one which, particularly when affected by alcohol, involved physical and verbal abuse. The two of them were seen around the deceased's premises and in the township of Uralla in turn often very much affected by alcohol, often arguing together and at times very close, friendly and attentive.

25 There had been previous episodes of violence on the part of the prisoner towards the deceased, particularly when both parties were very much affected by the large amount of alcohol both of them consumed.

26 The prisoner is a 69-year-old man born in Uralla on 10 May 1932. He will thus shortly turn 70. He left school at age 10 to help out with family finances. Working initially as a manual labourer, he subsequently worked in the timber industry for many years in the position of supervisor. He worked for the Department of Main Roads for 14 years until retirement in 1983 for medical reasons.

27 The prisoner was married at the age of 17 and has four sons and five daughters from that marriage ranging from age 32 to 51. His children are doing well apart from one who has debt problems. He has had to work hard all his life attempting to make ends meet.

28 In a report dated 9 October 2001 admitted in evidence, Julie Hendy, Clinical Neuropsychologist, described the prisoner as being borderline intellectually impaired in his current functioning, extremely concrete in his thinking, unable to deal with even simple information in an abstract way.

29 In the report of Dr Nielssen of 16 October 2001, admitted in evidence, it was shown that the prisoner denied ever experiencing typical symptoms of psychotic episodes, and particularly denied having concerns about his girlfriend's fidelity. Dr Nielssen concurred with Ms Hendy's diagnosis and stated that the prisoner showed signs of slowing mental processes, probably due, he discerned, to the early onset of dementia. He went further to suggest in his report that Oxazepam is known to produce amnesia for events that occur when intoxicated with the drug, although at the time of intoxication there is awareness of events that are occurring.

30 The prisoner has lived on his own subsequent to the death of his wife in 1987. He met the deceased about six years ago. The relationship was fraught with difficulties as described in Dr Bruce Westmore's report dated 26 October 2001 exhibited before me, and I quote from pages 5 and 6:

“The couple had common interests in country and western music, but they also consumed excessive amounts of alcohol during the course of their relationship. There was, I understand, a history of episodic animosity in the relationship and perhaps a prior history of aggression involving both parties”.

31 The prisoner told Dr Nielssen that he had attempted to help the deceased, encouraging her to reduce her alcohol intake, also in finding her accommodation and while initially successful, she suddenly changed, according to the following account in the report:

“Mr Hunt said that the situation took a turn for the worse after members of her family moved to Uralla from Redfern and Mrs Reid began drinking again. He said she became very abusive when she had been drinking and said that police had witnessed her damaging his property and shouting at him. He said that he had been advised to press charges against her by a policeman, Ron Stoltenberg, who had observed her behaviour whilst drunk on a number of occasions”.

32 Taking into account the evidence before the Court, I find beyond reasonable doubt that the deceased was killed on 11 June 2000 at Uralla; that death was caused by the unlawful act of the prisoner, being the multiple stab wounds inflicted by a large knife on the deceased by the prisoner.

33 Upon examination of the blood trail and particularly the wounds which I have set out above and the location of the knife found in the deceased's body when located, I also find beyond reasonable doubt that the action of the prisoner causing the deceased's death was done with intent to kill the deceased.

34 In sentencing, the facts relating to the offence, as well as factors relating to the offender, must be taken into account. The Court needs to weigh up these objective and subjective circumstances and any aggravating and mitigating factors that provide the basis for assessment of the seriousness of the offence and the culpability of the offender.

35 Pursuant to s61(1) of the Crimes (Sentencing Procedure) Act 1999, a Court must impose a mandatory sentence of life imprisonment if it is satisfied that:

".… the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence."

36 The principle referred to in R v Twala (Unreported, NSWCCA, 4 November 1994) per Badgery-Parker J, with whom the other members of the Court agreed, at page 7 held:

“However, in order to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness, and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from the subjective features mitigating the penalty to be imposed)”.

37 The level of culpability in the offence requires, therefore, consideration of any factors in mitigating the objective seriousness of the crime, such as provocation, but does not include subjective features mitigating the penalty to be imposed: see R v Ibbs (1987) 163 CLR 447 at 451-452 and R v Dodd (1991) 57 A Crim R 349 at 354.

38 I do not consider that this is a "worst-case" category crime but, nonetheless, I want to emphasise that I consider this to be a most serious crime, one that had some degree of forethought and acted out with a considerable degree of violence, sufficient to deny another human being the right to live. I consider that there was some degree of loss of self-control induced through drug and alcohol use, which does reduce in part the objective seriousness of the crime.

39 The sentence to be imposed for any crime must take into account the many different purposes which that sentence is expected to serve; the protection of society; personal and public deterrence; retribution and reform: see Veen (No 2) (1987-88) 164 CLR 465. The joint majority in Veen (No 2) of Mason CJ, Brennan, Dawson and Toohey JJ at page 476 held in relation to sentencing:

”The purposes overlap and none of them can be seen in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to appropriate sentences but sometimes they point in different directions”.

40 Public deterrence is a significant principle objective of sentencing and subjective considerations (with the exceptions of youth and mental incapacity) made on behalf of each offender, no matter how persuasive, will always be subordinate to the primary duty of the Courts, which is to impose a sentence which must principally serve to deter the further commission of similar crimes: R v Rushby [1997] 1 NSWLR 594 at 597-598 and R v Purdey (1993) 65 A Crim R 441 at 445.

41 Retribution for the injury perpetrated by the offender is also an important aspect for consideration in sentencing: see R v Crump (Unreported, NSWCCA, 30 May 1994) particularly at page 22 per then Hunt CJ at CL. In this respect, Hunt CJ at CL held that it is important that not only the community feel satisfied that the offender received his just desserts, but also that the victims, and in this case the family left behind, are satisfied that justice has been done.

42 These principles of sentencing emphasise the fact that rehabilitation is only one of the purposes of the punishment, and as Hunt CJ at CL enunciated in Purdey at page 445, it will always be subsidiary to the need for a sentence to act as a deterrent to the public and particularly as a means of retribution for the crime that has been committed.

43 In terms of general deterrence aiming to discourage by fear of punishment, all persons who may be tempted to commit crimes in general, there is also the factor of specific deterrence directed towards deterring the offender personally from repeating his crime. General principles of deterrence must be adjusted to the individual case if justice is to be achieved in the individual case.

44 Mr Parker, on behalf of the prisoner, made submissions concerning the prisoner's remorse. Contrition and remorse after the offence are mitigating factors and in some instances can lead to a considerable reduction in normal sentencing. Remorse is thus a relevant matter to be taken into account in mitigation, and may exist independently of a plea of guilty which may have been entered into in recognition of the inevitable, and I cite R v Stafrace (1997) 96 A Crim R 452 per Hunt CJ at CL.

45 The prisoner obviously did not plead guilty to the commission of this offence. The prisoner relied on the defence of amnesia, that is, he had no recollection of the event, it being extrapolated that this was due to the Oxazepam overdose. It was submitted on behalf of the prisoner, however, that certain behaviour by the prisoner followed by the commission of the offence was born out of remorse.

46 It was submitted that the actual offence came to notice by the prisoner calling the police virtually immediately following its commission, and that the information proffered to Const. Hinds at Armidale Police Station, although not making any explicit admissions, indicated the prisoner's personal knowledge of the situation that effectively led to the prisoner's arrest and the consequent guilty verdict.

47 It is further submitted that the large dose of Oxazepam, if taken following the commission of the offence, is indicative of a real sense of remorse, particularly if taken to injure himself. It should be noted that the prisoner told an ambulance officer on the way to the hospital:

"I don't want treatment for this overdose".

48 There was further evidence during submissions on sentence given by Mr Noel Allen, with whom the prisoner lived whilst on bail, which indicated that while the prisoner was a very private man and not open to discussing personal issues, there were many things he did and said during this period which led Mr Allen to believe that the prisoner was remorseful for what he had done.

49 I am satisfied and accept the submission of Mr Parker about the prisoner's action in contacting the police and giving them the information and assisting the police in finding the deceased's body. I also consider that the overdose must be construed as strong evidence of remorse. Whilst I acknowledge that there was no plea of guilty and the prisoner does not receive the utilitarian benefit of such a plea, I am satisfied that overall the prisoner's actions in his attempt at killing himself and the effects of the massive drug overdose and his subsequent behaviour indicates a real sense of remorse, and I will take this into account in mitigation of the sentence to be imposed.

50 The age of the prisoner will be taken into account in the sentence I will impose. There is not a lot of useful authority as to how a prisoner's age will be taken into account, The number of cases involving people of the prisoner's age is very sparse for all offences. In R v Holyoak (1995) 82 A Crim R 502 at 507, Allen J, with whom Handley JA and Hulme J agreed, held:

“It is simply not the law that it never can be appropriate to impose a minimum term which will have the effect, because of the advanced age of the offender, that he well may spend the whole of his remaining life in custody”.

51 Whilst saying this, Allen J recognised that consideration of age such as a short life expectancy must have some relevance in sentencing, and he continues in Holyoak at 507-508 to identify the principles related to age:

“Of course, account must be taken of how much more onerous it will be for him to serve a gaol sentence than it would be if he were younger. That is material to the appropriate length of the full-time custody. It does not make proportionality irrelevant.

What, however, is appropriate by way of full-time custody, viewed from the point of view of general deterrence, must be considered in the light of the impact upon public perception of a gaol sentence imposed upon a man of such advanced years upon whom the sentence would bear more heavily because of his very age and the real risk that he will never walk free”.

52 I take this factor into account in the sentence that I propose to impose.

53 Dealing with the aspect of the prisoner's health, it has been a practice in this Court to take into consideration circumstances which may make imprisonment more burdensome for offenders, particularly health status. These principles were set out in R v Vachalec [1981] 1 NSWLR 351 at 353-354 and include the following factors: the need for medical attention; hardship in prison; and the likelihood of the prisoner's reasonable needs being met whilst imprisoned.

54 The prisoner had surgery in 1983 to remove an acoustic neuroma which gave rise to residual deafness in the right ear and a persistent right seventh nerve facial palsy coupled with epiphora, which is crying from the right eye whilst eating. It is also noted in this report that the neurologist, Dr Hughes, commented on the need for a surveillance brain scan as acoustic neuromas have a tendency to occur bilaterally. The prisoner has significant loss of mid to high tone hearing in the left ear. He has a marked tremor of the upper limbs and head and occasionally involving his legs. The prisoner requires the aid of a walking stick to assist in mobilisation.

55 Whatever sentence the prisoner serves, he will, because of his hearing problem and because of the sense of isolation that that will bring, do his time harder than the normal prisoner.

56 I have also taken into account the case of R v L (Unreported, NSWCCA, 17 June 1996) in a Court judgment where it was held:

“The fact that an offender suffers from an illness does not necessarily mean that a prison sentence should not be imposed or that a sentence should be less than the circumstances of the case would otherwise require. It is the possibility of the executive to provide for the care and treatment of its prisoners: R v Vachalec (1981) 1 NSWLR 351 per Street CJ at 353-4”.

57 I have also applied the judgment of King CJ of South Australia in R v Smith (1987) 44 SASR 587 at 589 that the health of the prisoner will sound in mitigation if its effect is to make prison measure burdensome on the offender:

“The state of the health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot not be allowed to become a licence to commit crimes, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking, ill health will be a factor tending to mitigate punishment only when it appears that the imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health”.

58 That decision was applied by this Court in R v Sopher (1993) 70 A Crim R 570 at 573, where it was held:

“An appropriate balance has to be maintained between the criminality of the conduct in question, any damage to health or shortening of life ... if gaol is significantly harder for a person because of difficulties due to health and age, this would be a relevant matter to take into account”.

59 The prisoner's deafness and the evidence of early signs of dementia is also relevant. Deafness is relevant, it being held in R v Russell (1995) 84 A Crim R 386 that hearing loss, which is common amongst Aboriginal people, was deemed to contribute to harshness of a custodial sentence. In Ms Hendy's report, the prisoner said that when in a group he cannot follow conversations as it all becomes blurred due to his hearing.

60 I take into account in the sentence I impose the very severe physical problems from which the prisoner suffers.

61 If I may turn to the fact of the prisoner's Aboriginality. In R v Elemes [2000] NSWCCA 235, Adams J held that it was appropriate to take into account that Aboriginal people often find themselves in a position of being foreigners in a gaol environment, and that one needs to take that into account when assessing the hardship of gaol life faced by an Aboriginal person. This is particularly so with the age of the prisoner, where it is unlikely that he will find people of a similar age group to himself.

62 The circumstances for considering Aboriginality as a relevant factor were considered extensively by Wood J, as he then was, in R v Fernando (1992) 76 A Crim R 58 at 62-63, and this authority has been extensively applied since this judgment. At pages 62 and 63 his Honour said:

“(A) The same sentencing principles are to be applied in every case, irrespective of the identity of the particular offender or his membership of an ethnic or other group, but that does not mean the sentencing court should ignore those facts which exist only by reason of the offender's membership of such a group.
(B) The relevance of the Aboriginality of an offender is not necessarily to mitigate punishment, but rather to explain or to throw light on the particular offence and the circumstances of the offender.
(C) It is proper for the Court to recognise that the problems of alcohol abuse and violence which to a very significant degree go hand in hand with Aboriginal communities are very real ones and their cure requires more subtle remedies than the criminal law can provide by way of punishment.
(D) Notwithstanding the absence of any real body of evidence demonstrating that the imposition of significant terms of imprisonment provides any effective deterrent in either discouraging the abuse of alcohol by members of the Aboriginal society or their resort to violence when heavily affected by it, the courts must be very careful in their pursuit of their sentencing policies to not thereby deprive Aboriginals of the protection which it is assumed punishment provides. In short, a belief cannot be allowed to go about that serious violence by drunken persons within their society are treated by law as occurrences of little moment.
(E) While drunkenness is not normally an excuse or mitigating factor, where abuse of alcohol by the person for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects”.

63 Wood J further set out the need to avoid racism or paternalism, but at the same time be sensitive to the different needs of Aboriginal people and the difficulties that prison life often presents to them. The principles, however, recognise that the punishment imposed must reflect the objective nature and seriousness of the offence whilst taking into consideration the relevant subjective features.

64 I have received and considered the victim impact statements furnished by Pauline Dixon, the daughter of the deceased, exhibited before me, which details her feelings of despair and anger at the death of her mother. The second victim impact statement furnished by Raymond Dixon, the son of the deceased, described his life as out of control since his mother's death. Mr Dixon stated that he has difficulty staying in control, he is depressed, constantly frustrated, drinking heavily and as a result of his continued anger and drinking he has had to move away from his family.

65 Considering the victim impact statements before me, I acknowledge the terrible impact of the crime on the family of the victim, and I give public recognition of the grief endured by the family as a result of the prisoner's crime: R v Mansour (1999) 29 MVR 409 per Spigelman CJ at paragraph 7, and s28(2) of the Crimes (Sentencing Procedure) Act 1999.

66 The victim impact statements underline the impact this has had on the family, and the Court acknowledges and sympathises with the ongoing pain the family must feel. Although I have considered the victim impact statements, I have not taken them into account in sentencing, as I have considered the other factors which I have previously and will shortly set out are the proper basis for the decision that I have reached.

67 Having regard to s5(1) of the Crimes (Sentencing Procedure) Act 1999, I consider that a non-custodial punishment is inappropriate given the objective seriousness of the crime.

68 The prisoner was, during the period leading up to the trial and during the course of the trial, allowed bail on conditions. He was taken into custody on 22 November 2001 and has remained in custody since that time. Submissions were taken on sentencing on 24 January 2002 and his custody has continued.

69 The prisoner spent some 13 days in custody in relation to this matter immediately following his arrest, and I propose to give credit for those days, and will therefore commence the sentence from 9 November 2001, being 13 days prior to 22 November 2001, thus giving credit for the 13 days before being placed in custody on 22 November 2001, and in that respect I use the power of the Court provided in s47(2) of the Crimes (Sentencing Procedure) Act 1999.

70 There was tendered before me the criminal antecedents of the prisoner, which indicate a very minor series of matters, all of which occurred on or before 1978. I indicated at the hearing on sentencing that I would treat the prisoner as a person of good character, and the Crown had no objection to this course, and I take that factor into account in imposing the sentence.

71 During the course of the hearing, the Crown tendered and I received a list of sentences imposed under s19A of the Act involving the killing of a wife, de facto, partner or girlfriend. There is some considerable difficulty extrapolating from the individual cases that are examined in the list before me as there is a very wide range of circumstances, and there are few that have sufficient similarity of circumstances to the present case with its factors involving particularly advanced age, health problems, Aboriginality, the nature of the relationship, the effect of alcohol and the clear showing of remorse in the attempt by the prisoner to kill himself and to prevent treatment that would reduce the effect of the medication that he took.

72 The prisoner is seriously hearing impaired and suffers from a constant tremor visible to those around him. He is, as I have indicated, like many members of the Aboriginal community, seriously affected by deafness, which will cause him to be very much isolated within the prison community, indeed, in any community. There will be few people in the prison population of his age at present, let alone during the course of the sentence, and the chance of finding another member of the Aboriginal community serving a term of years who is similarly aged within whichever prison complex in which he is kept is remote.

73 The prisoner is physically incapacitated and, as I have earlier indicated, is borderline intellectually impaired which will make his sentence more severe.

74 In fixing the sentence for this crime, I take into account that it was a vicious, violent and premeditated offence carried out without justification on an otherwise defenceless woman. The offence was carried out whilst the prisoner was substantially affected by alcohol, as he had been drinking during the course of that day. It is my view that he did not take the overdose of Oxazepam until after the killing, and on the evidence before me, I find that the taking of that medication occurred when he returned to his home.

75 I take into account that the prisoner is entitled to have the Court consider the serious effect of long-term consumption of alcohol, as set out in the principles in Fernando to which I have earlier referred. I have also taken into account that the prisoner will do his time harder, and therefore must be given credit for the fact that the sentence will be harder on him because of his physical and intellectual frailty, and his advanced years which will become harder on him as years pass. I also take into account the prisoner's good character and the remorse which he has shown, and the way he has conducted himself, and in particular his attempt at suicide which was a very serious attempt on his part at killing himself, notwithstanding the limited prospect of success which his actions caused.

76 The prisoner will find his time in custody additionally difficult because of his severe hearing problem and the intense isolation caused by his age and his infirmity, and also taking into account the need for medical treatment presently and likely in the future. His age inevitably makes his sentence harder.

77 I do, however, take into account that this was objectively a very serious crime requiring public and individual deterrence and denunciation by this Court, whatever the age of the prisoner may be.

78 In the circumstances that I have outlined, I consider that the sentence which should be imposed is imprisonment for 14 years, to date from 9 November 2001. I consider that the age of the prisoner and the long-term problems that he has had with alcohol abuse will make his transition back to society extremely difficult. I therefore consider that a longer term of supervision outside the prison system whilst he adjusts to society from the time that he is released to parole is appropriate, and in those special circumstances I will lengthen that period of supervision.

79 Leo Vincent Hunt, will you please stand. For the murder of Marion Louise Reid you are convicted and sentenced to serve a term of 14 years imprisonment to commence on 9 November 2001. You will serve a non-parole period of 10 years from 9 November 2001 to conclude on 8 November 2011, from which time you will be eligible for parole.

80 Although it is a matter for the prison authorities, because of the prisoner's need to have family visits as much as possible, it is recommended that in light of the state of his health, the prisoner be allowed to serve his time at Cessnock Correctional Centre. You may be seated.

oOo

Last Modified: 03/20/2002