R v Jason Robert NAA

[2009] NSWSC 1077

CITATION:	R v Jason Robert NAA [2009] NSWSC 1077
HEARING DATE(S):	01/09/2009, 25/09/2009
JUDGMENT DATE :	9 October 2009
JUDGMENT OF:	Howie J at 1
DECISION:	On the charge of murder the offender is sentenced to a total period of custody of 23 years. There is to be a non-parole period of 17 years 3 months and a balance of term of 5 years 9 months. The sentence is to date from 20 October 2007 and the non-parole period expires on 19 January 2025. On the charge of assault occasioning actual bodily harm the offender is sentenced to a fixed term of 22 months to date from 20 October 2007 and that expired on 19 August 2009. On the charge of using an offensive weapon the offender is sentenced to a fixed term of 3 years and 3 months to date from 20 October 2007 and is to expire on 19 January 2011.
CATCHWORDS:	Criminal Law - Sentence - conviction for murder - jury rejects defence of substantial impairment - relevance of offender's mental state at time of killing - objective seriousness of offence less than mid range.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 - s 21A(3)(j)
CASES CITED:	MLP v R [2006] NSWCCA 271; 164 A Crim R 93
PARTIES:	Regina v Jason Robert Naa
FILE NUMBER(S):	SC 2008/8420
COUNSEL:	W Creasey - Crown G Scragg - Offender
SOLICITORS:	S Kavanagh - Crown Jeffreys & Associate - Offender

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

HOWIE J

FRIDAY 9 OCTOBER 2009

2008/8420 REGINA v Jason Robert NAA

REMARKS ON SENTENCE

1 HIS HONOUR: After trial by jury the offender was convicted of murdering the deceased, Kara Kenny, at Wyong on 20 October 2007. He was also convicted of an offence of assault occasioning actual bodily harm on her grandmother, Doris Jerums. Before the trial the offender pleaded guilty to a charge that on 20 October 2007 he used an offensive weapon to prevent the lawful apprehension of himself. The charge of murder carries a maximum penalty of life imprisonment with a standard non-parole period of 20 years. The assault charge carries a maximum penalty of imprisonment for 5 years and the offensive weapon charge a maximum penalty of 12 years imprisonment.

2 When first arraigned before the jury the offender pleaded guilty to manslaughter on the murder charge and guilty to the other two offences. The Crown did not accept the manslaughter plea. However, after he had given evidence before the jury, I rejected the pleas of guilty to the charge of manslaughter and the assault charge.

3 The facts can be briefly stated. The offences all arise from the one incident that occurred over several hours in the early morning of 20 October 2007. The offender and the deceased had been in a relationship since 2001 when the deceased was aged 18, five years younger than the offender. At the time of the stabbing the relationship had ceased but they were living in the same premises, a townhouse rented by the deceased. She had permitted the offender to stay there because he had nowhere else to live. The townhouse was next door to similar premises in which the deceased’s grandparents lived. The deceased and the offender had two children then aged 5 and 2.

4 The relationship between the offender and the deceased had been punctuated by domestic violence. There was evidence before the jury that on occasions the offender had threatened or assaulted the deceased and on at least two occasions she had sought refuge with her mother or grandparents. The offender would become aggressive under the influence of alcohol. On one occasion, when the deceased was staying with her grandparents in order to avoid the offender, he came to the house. While the grandfather was trying to get him to leave the premises, the offender struck him in the face breaking his nose.

5 On the evening of the killing there had been a number of disputes between the offender and the deceased over the children. At about 10.30pm they had an argument about the fact that the children were not in bed. The offender left the premises and went to a local hotel where he purchased 6 full-size bottles of full-strength beer. He consumed them sitting on the front patio of the premises.

6 At 11.56 pm the deceased came into the grandparent’s premises with the youngest child to use the phone to make a triple 0 call. During the call she said:

..my kids father’s been staying there and he’s just, like been drinking and he’s carrying on and I think he’s smashing the place up……..I just want him to go away for the night.

She asked that the police be sent as soon as possible.

7 The deceased made a second triple 0 call at 12.02am. During the course of it the offender arrived at the grandparent’s home. The deceased told him to leave and that she would give him money for a motel. He insisted that she open the door but the deceased refused. Eventually the offender kicked in the front door. He was armed with two knives that he had earlier taken from a knife case in the garage. The triple 0 call graphically records what then happened.

8 As the offender entered the premises he told the grandfather to back off. The deceased fled towards a bedroom with the child. The grandmother attempted to get between the offender and the deceased armed with a statue of David that she used to threaten the offender. He pushed her out of the way causing her to fall to the ground and her artificial leg to come off. He then kicked in the door to the bedroom. The deceased said, “You’ll kill me” and the offender stated, “I’ll fucking kill you alright don’t worry about that cunt”. He then said, “I fuckin got ya alright”. He threatened to kill the grandfather if he came into the room.

9 The deceased came out bent over with pain as she had been stabbed in the stomach. She fell into a chair. The offender approached her, pulled up her head and slit the side of her neck with a knife. The grandmother yelled out, “He stabbed her in the neck”.

10 The offender ran out to the front of the premises still holding the knives. He threatened both the grandfather and a neighbour not to come near the premises. A short time later two police officers arrived. The offender still armed with the knives threatened them and they drew their pistols. Officer McCarthy and other police negotiated with the offender over a period of almost three hours before he finally put the knives down. During the course of this stand off the offender frequently threatened police asking them to shoot him.

11 The deceased died as a result of a single stab wound to the stomach. The wound to the neck was not life threatening. The grandmother suffered an injury to her leg that required her to take to her bed for about 9 weeks.

12 When the trial commenced before the jury, the defence was that the offender did not have the intention to kill the deceased because of his intoxication or, in the alternative, that the defence of substantial impairment had been made out. However, during the course of the trial the offender gave a version in evidence that asserted the stabbing was accidental and that at the time he was acting in defence of his son. He also denied having intentionally pushed the grandmother over. This version was inherently improbable, inconsistent with the triple 0 call and, unsurprisingly, rejected by the jury.

13 There was a considerable amount of evidence concerning the offender’s mental health. All of the psychiatrists who gave evidence at the trial were of the opinion that the offender was suffering from a depressive illness that impaired his ability to control himself. However, there is little doubt that the consumption of alcohol played a significant role in the offender’s depressive illness, at least on occasions when it resulted in suicidal and homicidal thoughts. But despite having convictions involving the use of alcohol, his history of alcohol-related violence and depression, and the fact that alcohol clearly played a part in the death of the deceased, the offender told Dr Nielssen that he did not believe that he had any problem with alcohol.

14 There has been a history of depression as a result of his relationship problems and exacerbated by chronic back-pain. There have been suicidal thoughts that have resulted on at least two occasions in serious suicide attempts one in 1996 and another in 2004, the latter requiring admission to intensive care after a drug overdose. He has had admissions to psychiatric care including in May 2007, that is about 6 months before the killing. On that occasion he voluntarily sought help because of having suicidal and homicidal thoughts. He discharged himself after two days without any follow-up treatment. On occasions he has been treated with anti-depressant medications.

15 There was an issue at the trial as to whether the offender was suffering from a brain injury. A PET scan of the offender’s brain revealed an abnormality of the medial aspect of the temporal lobe and which would have interacted with the use of alcohol. According to Dr Lowe this could have meant that the offender tended to be more aggressive especially when under the influence of alcohol. This did not assume any significance at the trial because the jury were obliged to ignore the effects of alcohol when considering whether the defence of substantial impairment applied. However, I am prepared to accept for the purpose of sentencing that the offender suffered from depression and a brain injury that made him less able to control himself when under the influence of alcohol.

16 However, although the offender has periods of depression when he contemplates taking his own life, there is nothing to indicate that before he consumed alcohol on this evening he was showing any mental disturbance at all. He had been at the deceased’s mother’s premises earlier that day and was using her computer to access the Internet.

17 The offender’s mental state is a matter that has a limited mitigatory effect in an assessment of his objective criminality. The offender must have been aware that, if he consumed substantial amounts of alcohol, he ran the very real risk that he would become depressed and have aggressive thoughts. He had shown a degree of insight into his condition when he admitted himself for psychiatric assistance in May prior to the killing of the deceased.

18 It was put to the jury on the offender’s behalf and repeated before me in the sentencing proceedings that the offender was not significantly intoxicated notwithstanding the amount of alcohol he had consumed. Reliance was placed upon the evidence of the two police officers who were first on the scene and did not believe that he was affected by alcohol. But I do not accept that their evidence is reliable: they clearly had other things on their minds. An observer, Sgt Lawson, believed the offender was intoxicated and the evidence of Dr Pearl reveals that he must have had a reading of about 0.15. The offender himself told police that he was moderately affected.

19 As I have noted the offence of murder carries a standard non-parole period. It is necessary to take the stepped approach in determining the sentence that has been described in a number of decisions in the Court of Criminal Appeal: see MLP v R [2006] NSWCCA 271; 164 A Crim R 93. Had it not been for the offender’s mental state the murder would have been at the upper end of mid range of objective seriousness if not slightly above that point.

20 Taking into account his mental state the offence is slightly below mid range. The offence was not an instantaneous reaction to some act that he thought was provocative on the part of the deceased. He armed himself with what he knew were sharp knives from the garage in preference to the knives in the kitchen. He pursued the deceased whom he knew was seeking refuge in the grandparent’s residence. When entrance was refused to him, he forced his way into the premises. He still pursued the deceased when she locked herself in the bedroom, and forcibly entered that room. It is clear that he intended to kill her from what he said at the time and the act of slitting her neck with the knife while she was in the chair. There was a history of violent behaviour by him to her and others when he was under the influence of alcohol. He killed her in the presence of the youngest child although hopefully he was not fully aware of what was happening. He made threats to any person who might have sought to assist her.

21 However, it is clear that the offender was mentally disturbed at the time and was suicidal in relation to his conduct to the police. The statements he made to the police about the deceased and his wish for her to die have to be viewed in light of his mental state at the time that was highly aggressive both to himself as well as others. But the offender has never shown any remorse for her death, and the purpose of his evidence and accounts he gave to the psychiatrists was to blame her for the incident that led to the stabbing and to assert that she caused her own death by running on to his knife.

22 Mr Scragg who appeared for the offender on sentence submitted that the offence was mitigated because the offender was not fully aware of the consequences of his actions; see s 21A(3)(j) of the Crimes (Sentencing Procedure) Act 1999. I do not accept that submission, and, as I have already noted, the offender intended to kill the deceased and was very much aware of what he was doing. His mental illness however made him less able to control himself especially when he had consumed alcohol. This does lessen his culpability for the offence but I do not believe it has any other impact upon the sentence to be imposed upon him. It will not make his custodial situation more onerous and it does not mean that general deterrence should be substantially reduced when sentencing for the offence of murder committed in the context of domestic violence. I do not intend however to take into account specific deterrence in light of the period he must serve in custody before he could be eligible for release.

23 There is little by way of personal factors that bear upon the determination of the non-parole period. I have no understanding of his prospects for rehabilitation and, in any event, that is a matter best judged by the parole board when he comes to be eligible for release after many years in custody. He was at the time of the killing a danger to members of the community but with treatment for his depression and, if he abstains from alcohol, he may not be so in the future.

24 I have heard from members of the deceased’s family as to the impact of her death upon them. The Court sympathises with their loss. I cannot, however, impose a heavier sentence upon the offender because of that loss no matter how severe it might be or because he has deprived two innocent children of their mother.

25 The Crown accepts that the offence committed against the grandmother is overwhelmed by the seriousness of the murder and the totality of his criminality in killing the deceased is not increased by that offence. Therefore the sentence for that offence should be made concurrent with the sentence for the murder. The Crown, however, submitted that there should be an accumulated sentence for the offence committed against the police as being a separate act of serious criminality that continued for a considerable amount of time.

26 Offences involving threats of violence to police officers who are acting in the course of their duties demand that deterrent sentences be imposed for the protection of members of the police force. This was, however, an unusual case. The offender was clearly threatening the police only in order that they would kill him. It was an attempted suicide. The more serious threat was to others who might have sought to assist the deceased such as ambulance officers, the grandfather or a neighbour. The offender would have been shot before he had inflicted any harm on a police officer. He had to get near enough to have used one of the weapons and he would have been killed or seriously wounded before he could have carried out the threat. In fact at one stage officer McCarthy had her finger on the trigger about to fire her weapon just before the offender turned away from her. The conduct toward the police was the result of the same mental state of the offender that led to him killing the deceased. He was both homicidal and suicidal.

27 In any event the sentence for the murder takes into account threats he made to her grandfather before and after the killing and threats to any person that might assist her. In this very unusual case and having regard to the fact that the offender is to be sentenced for murder, I do not intend to impose any further sentence for his conduct to the police having regard to his mental state at the time. In that regard he is not a suitable vehicle for general deterrence. The sentence will be reduced somewhat for the plea of guilty but it was of little utilitarian value because the facts of that offence had to be led on the trial for the charge of murder. I give him a discount of 15 per cent.

28 There are no special circumstances and Mr Scragg did not suggest that there were. The usual proportion between the non-parole period and the balance of the term will give ample time for supervision if the parole board releases him at the conclusion of the non-parole period. There is no other reason to reduce the non-parole period. Because of the non-parole period imposed for the offence of murder there will be fixed terms imposed for the other two offences.

29 On the charge of murder the offender is sentenced to a total period of custody of 23 years. There is to be a non-parole period of 17 years 3 months and a balance of term of 5 years 9 months. The sentence is to date from 20 October 2007 and the non-parole period expires on 19 January 2025, the date he is first eligible for release to parole

30 On the charge of assault occasioning actual bodily harm the offender is sentenced to a fixed term of 22 months to date from 20 October 2007 and that expired on 19 August 2009.

31 On the charge of using an offensive weapon the offender is sentenced to a fixed term of 3 years and 3 months to date from 20 October 2007 and is to expire on 19 January 2011.

32 I wish to commend the conduct of police officer McCarthy for her courageous yet patient and sympathetic handling of a difficult situation when under threat of the offender. The incident concluded without harm to any person including the offender principally through her behaviour.

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