R v Karen Dawson

[2012] NSWSC 1497

Supreme Court

New South Wales

Medium Neutral Citation:

R v Karen Dawson [2012] NSWSC 1497

Hearing dates:

27 - 29 August, 3 - 6 September, 10 - 13 September, 17 - 20 September, 24 - 26 September, 30 November 2012.

Decision date:

07 December 2012

Before:

Bellew J

Decision:

1.The offender is sentenced to a non-parole period of 17 years and 3 months imprisonment, commencing on 30 December 2010, and ending on 29 March 2028, with an additional period of 5 years and 9 months commencing on 30 March 2028 and ending on 29 December 2033.

2.The total term is one of 23 years imprisonment.

3.The offender will be eligible for parole on 30 March 2028 and her sentence will expire on 29 December 2033.

Catchwords:

CRIMINAL LAW - murder - where offender convicted by jury - offender's participation in joint enterprise - where defence of provocation rejected - provocation relevant as a mitigating factor - mental illness of offender - effect on general deterrence

Legislation Cited:

Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Knight v R [2006] NSWCCA 292
Markarian v R (2005) 228 CLR 357
Muldrock v R (2011) 244 CLR 120
R v Buddle [2005] NSWCCA 82
R v Dodd (1991) 57 A Crim R 349
R v Dong [2010] NSWSC 1242
R v Goundar [2010] NSWSC 1170
R v GWM [2012] NSWCCA 240
R v Isaacs (1997) 41 NSWLR 374
R v Matthews [2004] NSWCCA 112
R v Previtera (1997) 94 A Crim R 76
R v Sharrouf [2009] NSWSC 1002
R v Yeo [2003] NSWSC 31
Shaw v R [2008] NSWCCA 58
Versluys v R [2008] NSWCCA 76

Category:

Sentence

Parties:

Regina - Crown

Karen Dawson - Offender

Representation:

Mr P Barnett SC - Crown

Ms C Davenport SC - Offender
Director of Public Prosecutions NSW - Crown

Moin and Associates - Offender

File Number(s):

2010/429413

Judgment

INTRODUCTION

1. On 27 August 2012 Karen Dawson ("the offender") was indicted for the murder of Adrian John Trevett ("the deceased"), contrary to s 18 of the Crimes Act 1900 ("the Act").

1. The offender pleaded not guilty to that offence and stood trial jointly with her son, Mathew Aquilina ("Aquilina").

1. On 26 September 2012 both the offender and Aquilina were found guilty by the jury. A third offender, David Comber ("Comber") had pleaded guilty to a charge of murder shortly before the trial commenced.

1. The maximum penalty for the offence of murder is one of life imprisonment pursuant to s 19A of the Act.

1. A standard non-parole period of 20 years is prescribed for the offence pursuant to s 54A of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Act").

1. Section 61(1) of the Sentencing Act mandates the imposition of a life sentence if I am satisfied that the level of culpability in the commission of the offence was so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of such a sentence. The Crown has conceded that the circumstances in which the offender committed the offence are not such as to attract the provisions of s 61(1). I am satisfied that the imposition of a life sentence is not warranted.

1. In determining the appropriate sentence, I am not required to assess whether or not, having regard to the standard non-parole period, the offence is within the middle range of objective seriousness. Similarly, I am not required to commence by asking whether there are reasons for not imposing the standard non-parole period (see Muldrock v R (2011) 244 CLR 120 at [25]). The relevant statutory provisions, particularly ss 21A, 54B(2) and 54B(3) of the Sentencing Act require an approach to sentencing in which all of the relevant factors are identified and, having regard to all such factors, a determination reached as to the appropriate sentence (see Muldrock at [26], citing Markarian v R (2005) 228 CLR 357 at [51]).

1. The standard non-parole period for the offence of murder requires that content be given to its specification as the 'non-parole period for an offence in the middle of the range of objective seriousness'. It represents the non-parole period for a hypothetical offence in the middle of the range of objective seriousness, without regard to the range of factors, both aggravating and mitigating, that bear relevantly on sentencing in an individual case (see Muldrock at [27]; [31]).

1. The court received a victim impact statement from Lee Ostler, the deceased's niece. Whilst Ms Ostler chose not to read that statement to the court, I have done so. The statement sets out the effect and impact of the deceased's death upon his family, and particularly his brother.

1. As I did when the matter was before me for the purposes of hearing submissions on sentence, I express my sympathy to the members of the deceased's family. It is to be hoped that the opportunity which Ms Ostler has taken to provide her statement will assist her family's process of grieving. The authorities make clear the approach which is to be taken by a sentencing Judge in relation to statements of that kind in a case such as the present (see R v Previtera (1997) 94 A Crim R 76).

THE CIRCUMSTANCES OF THE OFFENDING

1. For the purposes of determining the appropriate sentence, I am required to make findings of fact in relation to the circumstances of the offending. Any factual findings I make must be consistent with the verdict returned by the jury. In particular, I must accept such facts as are established by that verdict, and I must not determine any factual issue in a way which is inconsistent with it (see R v Isaacs (1997) 41 NSWLR 374).

1. The Crown bears the onus of satisfying me, beyond reasonable doubt, of any finding of fact against the offender. The offender bears the onus of proving factual matters in mitigation on the balance of probabilities.

1. The Crown case against the offender was that she was part of an extended joint criminal enterprise with Aquilina and Comber, amounting to an agreement that the deceased would be assaulted by the application of physical force. It was the Crown case that in participating in that agreement, the offender contemplated the possibility that in carrying out that crime, there may be a wilful act or acts carried out with the intention of inflicting really serious bodily injury upon the deceased.

1. Much of the evidence given at the trial was not the subject of any real dispute on the part of the offender. Bearing in mind that evidence, I am satisfied beyond reasonable doubt of the following facts.

1. At the time of his death the deceased was aged 62. He resided alone in a caravan which was located on a vacant block of land at Red Range, a small village situated east of the township of Glen Innes in northern New South Wales. The deceased was well known in the local area. An avid cycling enthusiast who used his bicycle as his principal mode of transportation, he operated a small business selling fruit and vegetables from a cart in Glen Innes as a means of supplementing his income.

1. At the time of the deceased's death, the offender resided, with her 12 year old son Brandon, on a property, the boundary of which adjoined that of the deceased. As a consequence the offender and the deceased became friends. They would socialise together, and were in the habit of drinking heavily in each other's presence.

1. At some time in or about the middle of 2010, the relationship between the offender and the deceased became strained. Evidence was given by a number of persons called by the Crown at the trial that the offender had complained to them that the deceased was sexually harassing her, that he was attending her premises uninvited, that he was drinking her alcohol and that he had assaulted her son. I am satisfied that those complaints were made by the offender in the period leading up to the deceased's death.

1. In addition, there was evidence called by the Crown at the trial that the offender had complained to a friend that whilst minding her grandchildren, she had seen the deceased inappropriately touch one of them (the child in question being a child of her son, the co-offender Aquilina). I am satisfied, having regard to the evidence given at trial, that such a complaint was made by the offender. Although the time at which such complaint was made is not entirely clear, I am satisfied that it was within a few weeks prior to the death of the deceased.

1. On 28 October 2010 the offender drove the deceased to the Jackadgery Caravan Park which was located on the Gwydir Highway, 120 kilometres east of Glen Innes. It was the intention of the deceased to stay the night at that location, before undertaking a cycling trip across the Gibraltar Range on the following day. The offender left the deceased at that location and arranged to collect him on the following day from a location known as Ranger's Hut, which was on the eastern side of the Gibraltar Range, further towards Glen Innes.

1. When taken to the caravan park by the offender, the deceased had in his possession an "Apollo" road bike, along with a black backpack and a bicycle helmet. He was in possession of approximately $1,000.00 when he checked into the caravan park.

1. On the morning of 29 October 2010 the offender drove to Casino to see Aquilina. I am satisfied that the purpose of doing so was to discuss, with Aquilina, the behaviour of the deceased which the offender had reported to other persons in the period leading up to that time. I am also satisfied that at the instigation of the offender, Aquilina agreed to travel with her to Red Range for the purpose of confronting the deceased about his alleged behaviour. I am also satisfied that the offender was aware that the proposed confrontation could involve violence. It was Aquilina who asked Comber to accompany them.

1. The offender then drove Aquilina and Comber from Casino to Red Range, stopping en route at Glen Innes for the purpose of purchasing alcohol. Evidence was given at the trial that Aquilina was in possession of an iron bar when he left Casino. However, I am satisfied that the offender did not know this to be the case. Upon arrival at Red Range, the offender left Aquilina and Comber in an area known as the "Old Butter Factory" which was adjacent to her premises. That area housed an open shed with a cement floor and some items of furniture.

1. Having left Aquilina and Comber at Red Range, the offender went to collect the deceased, before returning. Upon their arrival at Red Range, the offender left the deceased in the area of the Old Butter Factory, where she knew Aquilina and Comber were waiting, before going into her house. Upon entering the area of the Old Butter Factory, the offender was struck on the head from behind by Aquilina with the iron bar. The offender was not present at that time and I am satisfied that she did not know until some later time that the deceased had been assaulted by Aquilina in that way.

1. Aquilina then called the offender to join himself, the deceased, and Comber. The offender then left her premises and made her way down to the Old Butter Factory. I am satisfied that it was at that time that the offender became aware that the deceased had been subject to violence in her absence.

1. Following the arrival of the offender at the Old Butter Factory, various allegations were put to the deceased about his behaviour towards the offender. I am also satisfied that during this period the deceased was subject to a number of acts of violence. This included the offender herself assaulting the deceased by punching him with a closed fist, and the deceased being punched and kicked by Aquilina before being knocked to the ground.

1. At a time when the deceased was, in the presence of the offender, lying helpless on the ground, Aquilina fashioned a noose from a length of rope which had been found nearby. The rope was then placed around the deceased's neck by Aquilina, and was used to kill the deceased. On the evidence at trial, Aquilina was the person primarily responsible for pulling on the rope. The Crown has not submitted that I should be satisfied beyond reasonable doubt that the offender pulled on the rope.

1. Following the deceased's death, his body was loaded into the rear of the offender's vehicle, with the aid of a wheelbarrow, by the offender, Aquilina and Comber. The offender then drove in her vehicle, with Aquilina and Comber as passengers, to Sandy Hill, a location approximately 27 kilometres east of Tenterfield. Upon arrival, the deceased's body was disposed of in the bush and barely covered. The offender then drove Aquilina and Comber back to Glen Innes.

1. Two days later, on 31 October 2010, the offender returned to Sandy Hill with Aquilina and Comber. I am satisfied that the purpose of doing so was to take steps to further conceal the deceased's body in the hope that it would not be discovered. Upon the arrival of the offender, Aquilina and Comber, the deceased's body was dragged by Aquilina and Comber through a fence line and then rolled down a steep slope until such time it hit a fallen tree. Sticks and branches were used to cover the body, following which the offender drove away from the area with Aquilina and Comber.

1. Evidence was given at the trial by Professor Timothy Lyons, a Forensic Pathologist, who conducted an autopsy of the remains of the deceased on 4 January 2011. Whilst there was extensive decomposition and some early skeletalisation, Professor Lyons was able to observe that there was a noose around the neck of the deceased which had been constructed from what he described as heavy duty twisted hemp rope, which had been tied with a bow line.

1. Professor Lyons described the noose as being 40 centimetres in circumference, and found that it had been wrapped twice around the deceased's body. Leaving aside detected defects in the soft tissues of the clavicle, Professor Lyons also observed that there was a defect in the deceased's body consistent with his genitalia being absent. However, he was not able to come to a definitive conclusion as to whether the deceased's genitals had been removed by a person, or whether they had been removed as a consequence of animal predation or heavy maggot infestation.

1. The ultimate opinion of Professor Lyons was that the noose around the deceased's neck gave rise to neck compression and asphyxia, causing his death. He said that when pressure is applied to the neck area, there are three common mechanisms which can be associated with resultant death, namely:

(a)   restriction of the airway;

(b)   obstruction of the blood supply;

(c)   the application of pressure to nerves of the neck.

1. Professor Lyons explained that the deceased's death could have occurred due to any one of those methods, or alternatively a combination of more than one. The evidence of Professor Lyons was not in dispute, and I accept it. I am satisfied that the deceased's death was caused as a result of neck compression and asphyxia, brought about by the application of the rope around his neck.

1. As I have noted, I am not satisfied that the offender had any direct involvement in the death of the deceased, in the sense that she pulled on the rope so as to cause the neck compression or asphyxia to which Professor Lyons referred. The verdict of the jury reflects an acceptance of the Crown case that the offender was part of the joint enterprise, that she was present during the entirety of the period in which the deceased was killed, and that she was ready, willing and able to assist as necessary.

1. The essence of the Crown case which was put to the jury was that although it may have been open to find that the offender joined the enterprise at a much earlier time, they would be satisfied beyond reasonable doubt that, at the very least, she had done so by the time that Aquilina called her from her home as detailed in paragraph [24] above. On sentence, the Crown specifically did not advance a submission that I should find that the offender had joined the enterprise at any earlier time. I am satisfied that she did not.

1. At the trial, the offender raised provocation by way of defence. She herself did not give evidence. However, she relied upon a number of witnesses called by the Crown who gave evidence about statements she had made to them concerning her distress at aspects of the behaviour of the deceased.

1. It is evident from the jury's verdict that they were satisfied beyond reasonable doubt that the offender was not acting under provocation of a kind which would provide a defence to the charge. However, it is open to me, if I am so satisfied, to have regard to that evidence as constituting provocation as a mitigating factor, albeit provocation which obviously falls short of that which is required to provide an accused person with a defence to murder. For the reasons I have more fully set out below, I am satisfied that there was some limited provocation exhibited towards the offender by the deceased. That is relevant to the assessment of objective criminality (see R v Buddle [2005] NSWCCA 82 per Wood CJ at CL at [11]).

1. Further, and for the reasons I have set out more fully below, there is evidence before me on the basis of which I am satisfied that the offender was suffering from a depressive illness at the time of her offending. The presence of such an illness is also relevant in the assessment of objective criminality (see R v Sharrouf [2009] NSWSC 1002 at [61] per Whealy J).

1. The offending had a number of aggravating features. The use of a ligature has been treated as a form of weapon (as to which see Versluys v R [2008] NSWCCA 76) and accordingly this is an aggravating feature pursuant to s21A(2)(c) of the Sentencing Act. Further, the offence was committed in company (s21A(2)(e) of the Sentencing Act).

1. The offender's participation, on two separate occasions, in the treatment of the deceased's body following his death is an aggravating factor (see for example Knight v R [2006] NSWCCA 292; R v Yeo [2003] NSWSC 315).

1. Having regard to the fact that Professor Lyons was not able to come to a definitive conclusion about the matter, I am not satisfied the deceased's body had been mutilated by the removal of his genitalia. Even if I were in a position to be satisfied of that fact, there is no evidence at all which would link that mutilation to any conduct on the part of the offender. In any event, the general principle that the treatment of the body of the deceased is capable of amounting to an aggravating factor has been extended to cases where such treatment did not involve any form of mutilation: R v Goundar [2010] NSWSC 1170; R v Dong [2010] NSWSC 1242.

1. Taking into account all of these matters, and having regard in particular to the role which was played by the offender and the time at which I am satisfied that she joined the enterprise, I take the view that the offending falls slightly below the mid range of objective seriousness.

THE OFFENDER'S SUBJECTIVE CASE

1. The only evidence tendered before the court on sentence was the report of Dr Richard Furst, Psychiatrist, dated 20 November 2012. Dr Furst examined the offender following the jury's verdict.

1. Before dealing with particular aspects of Dr Furst's report, and whilst I do not propose to set it out in its entirety, it must be said that the report as a whole paints a picture of the offender having suffered a number of personal traumatic events. She has had, on any view, a difficult life and has been beset by a number of personal tragedies. It is important, however, that in carrying out the task of sentencing the offender I do not give undue attention to her subjective circumstances, to the point where such attention results in the imposition of a sentence which is not reasonably proportionate to the gravity of the crime of which she has been found guilty (see R v Dodd (1991) 57 A Crim R 349 at 354, cited in R v GWM [2012] NSWCCA 240 at [136] per Johnson J).

1. The offender is 48 years of age. She was adopted following her birth, and has four sons, aged 28, 27, 20 and 14. Her 14 year old son, Brandon, was conceived as a result of a sexual assault upon her at the age of 33. She has been, for some time, an openly homosexual woman.

1. Based upon the history provided to him, Dr Furst reported that the offender had a lengthy history of emotional problems, and excessive drinking. Significantly, Dr Furst also recorded the following:

"Ms Dawson apparently suffered a number of depressive symptoms in 2010 prior to the events in question before the court. She said that she was always down, felt sad, felt tired, and had low energy levels. She was more withdrawn, excessively emotional and irritable, and was not sleeping well, averaging only 3 hours of sleep at night. She had problems with negative and intrusive thoughts and worries. She felt harassed by her neighbour Adrian Trevett and was also subject to negative taunts and a lack of acceptance by other people ever (sic) Red Range, partly due to her sexuality. She recalls feeling helpless, vulnerable and weak, but was not suicidal".

1. Part of the history provided to Dr Furst by the offender, and upon which this part of Dr Furst's report was apparently based, was that at some time prior to the commission of the offence (it is not clear exactly when) the offender was under the care of a General Practitioner in Glen Innes who prescribed anti-depressant medication, which the offender ceased of her own accord because of the side-effects. In addition, the offender told Dr Furst that she had consulted a clinical psychologist in Glen Innes (again, it is not clear when) for the purposes of counselling.

1. Dr Furst diagnosed the offender as suffering from a Major Depressive Disorder, and alcohol dependence. Importantly, his conclusions included the following:

"It would appear that she was fearful of the deceased to some degree, especially in light of his aggression when intoxicated, physical assault on her son Brandon and alleged sexual assault of her two young grandsons. She felt guilty about not protecting them and was suffering from symptoms of her depressive illness in October 2010 (my emphasis).

1. Dr Furst also concluded:

"Her judgment may well have been impaired by her depression".

1. The Crown submitted that the offender's depressive illness did not mitigate the seriousness of her offending and that there was no evidence to support a conclusion that the offender's judgment was impugned in any way. In view of those parts of the report of Dr Furst which I have extracted above, I do not accept the Crown's submissions in this regard, particularly in circumstances where the report of Dr Furst was tendered without objection, and where Dr Furst was not required for cross examination.

1. I am satisfied, on the basis of the opinions expressed by Dr Furst, that the offender suffers from a Major Depressive Disorder, and was suffering from depression at the time of her commission of the offence. Leaving aside the relevance of that issue in the determination of the objective seriousness of the offending (to which I have already referred), the issue is also relevant in another respect.

1. In Sharrouf (supra at [61]) Whealy J observed that the presence of a substantial and chronic mental illness is relevant not only to an assessment of objective criminality, but also to a determination of whether or not the case is one that calls for a measure of specific or general deterrence. In making that observation, his Honour referred to a number of authorities, including R v Matthews [2004] NSWCCA 112 where Wood CJ at CL had made the following observations (at [25]):

"The community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive functions or emotional restraints and in some instances lacks the ability to make reasoned or ordered judgments. Almost inevitably there is a limited appreciation of the wrongfulness of the act or of its moral culpability which, although falling short of avoiding criminal responsibility, does justify special consideration upon sentencing. However, such a condition is inherent and its presence does not depend upon any element of choice".

1. The Crown submitted that this was not a case in which the offender's depressive illness noticeably affected the significance of general deterrence. In light of the evidence, and the authorities to which I have referred, I do not accept that submission. That is not to say that I am of the view that matters of general and specific deterrence are wholly irrelevant. However in the case of this offender, their significance is less on account of her mental illness.

1. In terms of the statutory mitigating factors, three particular matters have been raised on behalf of the offender.

1. The first is her criminal history. The offender has a limited criminal history in New South Wales for driving offences. She also has a criminal history for offences of dishonesty in the Northern Territory which, although it discloses multiple offences, indicates that those offences were all related to the one course of conduct, and were dealt with at the one time. There is a further single conviction for an offence of dishonesty in Western Australia. She does not have any history of offences of violence. In my view, her criminal history is not such that it should be regarded as a mitigating factor pursuant to s21A(3)(e) of the Sentencing Act, other than to the limited extent that it discloses no offences of violence.

1. The second concerns the offender's prospects of rehabilitation pursuant to s21A(3)(h). It was submitted on behalf of the offender that in circumstances where she has no history of violence I should find that she has good prospects of rehabilitation and that on this occasion, she had acted out of character. In my view, although there is some force in that submission, this is a case in which the offender's prospects of rehabilitation may ultimately depend, to a large degree, upon her receiving appropriate treatment. The report of Dr Furst records the fact that the offender has not had any psychological or psychiatric treatment since being taken into custody. However, Dr Furst reported that although the offender had not engaged in any drug or alcohol counselling, she was "open" to engaging in such treatment.

1. In all of these circumstances, it is my view that the offender's prospects of rehabilitation are best assessed as reasonable. They are, as I have said, largely dependent upon the offender undertaking appropriate treatment, and that treatment being successful.

1. The third (and perhaps most significant) matter of mitigation, stems from the provisions of s. 23A(3)(c) of the Sentencing Act, which deals with provocation. I have already made reference to the evidence which was relied upon by the offender at her trial in that regard. It is evident that the jury were satisfied beyond reasonable doubt that the offender's actions were not committed under provocation.

1. However, I am satisfied on the basis of the evidence given at the trial, that the offender made a number of complaints about the conduct of the deceased to other persons in the period leading up to the commission of the offence. Those complaints were repeated and consistent, and the fact that the offender had made them was independently corroborated. I am satisfied that there had been some behaviour on the part of the deceased towards the offender which, although he may not have intended it to be so, was found by the offender to be offensive and hurtful. The Crown did not argue against such a finding, nor did the Crown argue against the proposition that it was open to me to find provocation as a mitigating factor. However, notwithstanding her complaints to others, I am not satisfied, in the absence of evidence from the offender, that such provocation included the inappropriate interference, by the deceased, with one of her grandchildren.

1. It has been observed that evidence of relationship tension, and general enmity, between relevant parties leading up to an offence, and which forms part of the overall circumstances in which an offence was committed, does not constitute evidence of provocation sufficient to amount to mitigation: see Shaw v R [2008] NSWCCA 58 at [26]. In the present case however, the evidence at trial extended, in my view, beyond mere tension and enmity. However, it must be emphasised that such provocation as I have found does not constitute an excuse for the offender's conduct (see generally R v Buddle (supra) per Wood CJ at CL at [11]).

1. I must also observe that although I am satisfied that the offender was hurt and offended by the conduct of the deceased, her chosen manner of dealing with that issue, involving, as it did, being party to an agreement to inflict harm upon the deceased, was wholly out of proportion. There were a number of ways in which the offender could, and should, have dealt with the situation which had arisen between herself and the deceased. The simplest option was to move away from the area in which she and the deceased lived. Significantly, there was evidence called by the Crown at the trial that the offender had discussed, with a neighbour, the fact that she had in fact made a decision to do just that, because "she had had enough" of life at Red Range. It is, to say the least, regrettable that she did not choose to take that course, but chose another which produced disastrous consequences.

1. The offender has been in custody since her arrest on 30 December 2010 and it is agreed that any sentence I impose should be backdated to commence on that date.

conclusion

1. In respect of the murder of Adrian Trevett, the offender is convicted.

1. The offender is sentenced to a non-parole period of 17 years and 3 months imprisonment, commencing on 30 December 2010, and ending on 29 March 2028, with an additional period of 5 years and 9 months commencing on 30 March 2028 and ending on 29 December 2033.

1. The total term is one of 23 years imprisonment.

1. The offender will be eligible for parole on 30 March 2028 and her sentence will expire on 29 December 2033.

**********