R v Lewis

[2014] NSWSC 1127

Supreme Court

New South Wales

Medium Neutral Citation:

R v Gareth Mullaya LEWIS [2014] NSWSC 1127

Hearing dates:

5-6 May 2014 & 25 June 2014

Decision date:

18 August 2014

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

Sentenced to imprisonment for a non-parole period of 13 years, commencing 1 July 2012 and concluding 30 June 2025, with a remainder of term of a further 5 years, expiring on 30 June 2030.

First eligible for release on 1 July 2025.

Catchwords:

CRIMINAL LAW - sentence - murder - guilty plea - Aboriginal offender - effect of discrimination and social exclusion on behaviour - treated akin to Fernando prinicples - sentence imposed

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

R v Fernando (1992) 76 A Crim R 58
R v Bugmy [2013] HCA 37; (2013) 249 CLR 571

Texts Cited:

Baumeister, Roy F. & C. Nathan DeWall, "The Inner Dimension of Social Exclusion: Intelligent Thought and Self Regulation Among Rejected Persons" (2005) 88 Journal of Personality and Social Psychology 589

Baumeister, Roy F., Jean M. Twenge, C. Nathan DeWall, Natalie J. Ciarocco & J. Michael Bartels, "Social Exclusion Decreases Prosocial Behaviour" (2007) 92 Journal of Personality and Social Psychology 56

Category:

Sentence

Parties:

Regina (Crown)
Gareth Mullaya Lewis (Offender)

Representation:

Counsel:
M. Fox (Crown)
C. Bruce SC(Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Randall Legal (Offender)

File Number(s):

2012/206530

Publication restriction:

None

JUDGMENT

Remarks on Sentence

1. HIS HONOUR: The Court must impose a sentence on Gareth Mullaya Lewis, who murdered David Mitchell on 1 July 2012 in unusual circumstances.

The Offence

1. Mr Lewis (the offender) had been released from prison in Queensland and attended the residence of Leigh Moon in Tweed Heads, where Mr Moon resided with his girlfriend. A third person, Leonard Noter, lived in a detached converted garage at the rear of the premises.

1. The offender contacted Mr Moon because the offender had met Mr Moon's son in gaol. The offender had stayed at the premises prior to this occasion. On 30 June 2012, the offender, Mr Moon and Mr Moon's girlfriend consumed amounts of alcohol and drugs. The effect of the cannabis on the offender (and the effect of the alcohol) was manifest. He had been in prison and had not consumed drugs or alcohol for some time.

1. The next morning, the offender was completely affected by alcohol and drugs. The offender and Mr Moon recommenced drinking Bourbon and smoking cannabis. This started early.

1. At approximately 10.30am on 1 July 2012, Mr Mitchell walked into the room having been sleeping in the lounge room. An argument occurred between the deceased and Mr Moon, with the deceased accusing Mr Moon of failing to wake him in sufficient time to collect his methadone that day. (The deceased and Mr Moon were each on the methadone program.)

1. The argument intensified. It had not involved the offender or any allegation against him or discussion about him.

1. Nevertheless, the offender stood from his seated position at the kitchen table; walked towards the deceased, who was still standing in the kitchen; and punched him to the head, causing the deceased to stumble to the ground.

1. The offender then punched the deceased on the top of the head, seemingly to halt the deceased's attempt to get up, whereupon the offender stomped on the deceased's head with his foot at least three times. Others sought to intervene. The deceased was unresponsive and bleeding from the head. An attempt was made to stem the bleeding and the deceased was immediately transported to Tweed Heads Hospital.

1. When the police arrived at the house, as a result of contact from the hospital, Mr Moon was so intoxicated as to be of no assistance and the offender was found lying face down asleep in the backyard. That was two hours' later.

1. A further two hours' later, that is, approximately 2.20pm, the police returned and arrested the offender on outstanding warrants. The offender told police he did not know the deceased or have any knowledge of what happened. The offender was released only to be re-arrested at approximately 2.55pm that day, after witness statements had been obtained from others.

1. The offender was charged, at that time with maliciously inflicting grievous bodily harm. The deceased passed away on 16 July 2012 and the offender was charged with the current offence. The cause of death was a cerebral haemorrhage caused by the stomping.

1. Two further issues are of note. Eyewitnesses described the conduct of the offender as "out of the blue". The only contemporaneous expression by the offender to the comment, "you've killed him", was to the effect "no one disrespects me...".

1. Consistent with what occurred at the police station is the evidence of the offender's solicitor, who, in relation to the timing of the plea, attested to the fact that the offender could not (and cannot) offer any assistance as to the events on 1 July 2012. I accept that the effect of the drugs and alcohol was so profound that the offender has no memory of the events, his conduct, or his motivation.

The Process of Sentencing

1. I deal with the process of sentencing. To those unfamiliar with the process of sentencing, some aspects of the task may seem difficult to understand. The Court is required to assess the objective seriousness of an offence within the range of conduct with which offences of that kind are concerned. Thus, even as here, where one is speaking of murder as the most serious offence in the criminal calendar, it is necessary to assess the conduct of the offender to determine where, in the range of seriousness, this offence fits.

1. It is only for the worst category of offences that one imposes the maximum sentence fixed by the Parliament. A sentence of life imprisonment is the maximum sentence for murder. Whether a particular offence is in that category is not ascertained by imagining conduct that could be worse. Unfortunately one can always imagine a worse scenario. Nevertheless, the Court must assess objectively the features of the offence and the circumstances of its commission in order to determine whether it is in the category of a worst case or lower down the scale of seriousness within a notional range between the lowest level of culpability and the worst category of case.

1. The purpose in sentencing any offender is to resolve what are often, if not necessarily, conflicting sentencing objectives. In serious crimes such as murder, the importance of punishment and public deterrence loom large. These include the protection of society, personal and public deterrence, retribution and reform.

1. Each of these objectives, but particularly the protection of society, personal and public deterrence, punishment and the need for rehabilitation must be assessed having regard to the gravity of the circumstances, viewed objectively within the range of offending comprehended by the offence charged. These point, most obviously, to the protection of society, deterrence of the offender and the deterrence of others who might be tempted to offend, and to retribution.

1. Considerations of reform or rehabilitation of the offender may also be significantly affected by the objective circumstances of the offence but they are more directly affected by the subjective circumstances of the offender and the capacity of the offender to be rehabilitated. The capacity for, and the likelihood, if any, of rehabilitation in turn impacts upon the degree to which a sentence is fixed, which ensures the protection of society and the personal deterrence of the offender.

1. This process is one that involves what has been described as "intuitive synthesis". It takes each of the objective circumstances of the offence and each of the subjective circumstances of the offender and synthesises them to achieve the purpose of sentencing already described.

1. Every murder is serious. Every murder involves the taking of human life by a person who has a state of mind that elevates the seriousness of the offence to that which is the most serious of crimes in the criminal calendar. As I have already stated, the maximum sentence for murder is life imprisonment, which penalty is imposed in the worst category of murder. The standard non-parole period for murder is twenty years' imprisonment in the hypothetical mid-range offence. The standard non-parole period does not apply here because of the plea of guilty for which due allowance must and will be given.

Additional Issues Relating to the Offence

1. I have read the victim impact statements. It is against the natural order of things for a parent to lose a child and particularly sad when that loss of a child occurs in circumstances, or as a result, of a violent act of this kind.

1. Similarly, a young child denied a parent, even one with whom he is not in constant contact, is extremely sad. Nothing in the victim impact statements is either unexpected or unusual. Murder has obvious and tragic consequences on the victim and the family of the victim. No matter what sentence the Court imposes, it cannot undo the consequences of the offender's conduct.

1. That conduct must be assessed as already stated objectively, as earlier described. I earlier described the murder as unusual. It is not unusual for offenders to be affected by alcohol or drugs. It is unusual for an offender to be so affected as to be unable, genuinely, to remember anything of the incident. It is also unusual for there to be no pre-existing relationship of any kind and no seeming motive whatsoever.

1. The factors to which the Court has regard in that assessment, arising from the facts outlined above, are that: the offender was on conditional liberty at the time of the commission of the offence, being liberty for matters in the Local Court, or its equivalent; while in murder there is generally a level of violence, there was no gratuitous violence or cruelty beyond that necessary to effect the crime; there was no weapon used, although the offender in stomping on the deceased's head in effect used his legs as weapons; the offence was a lone act, committed without any planning and without being part of any wider criminal activity.

Subjective Circumstances

1. The offender gave evidence at the sentencing hearing and testified to the truth of his history as provided to experts and also testified as to his remorse. I will deal with remorse slightly later, and set out his subjective circumstances from the report of Lia McInnes, Psychologist, of Duffy Robilliard Psychologists (Exhibit 1).

1. The offender, who is of Aboriginal descent and obviously so, was adopted by Caucasian parents, at six weeks of age. There is no evidence that this was part of any social policy. Rather it was an adoption in the ordinary course. Not that the latter aspect would, of itself, have any substantial impact on sentencing.

1. Until nine years of age, his upbringing and early childhood was "normal" and supportive. The young Mr Lewis was not cognisant of differences in his colour from that of his parents. At nine, his colour was the subject of comment in the schoolyard, including the difference in colour between Mr Lewis and his parents. On relaying this issue, his parents, for the first time, informed him of his adoption and of the process thereof.

1. In 1994, whilst in prison at approximately eighteen years of age, Mr Lewis met his birth mother. She died in 1997. Mr Lewis has met his biological father only once. The biological father seemed disinterested in him and the family. He considers his adoptive parents as his mother and father. Mr Lewis did, however, after gaining information from his biological father, make contact with his five siblings with whom he has had semi-regular contact.

1. After the schoolyard incident at age nine, Mr Lewis commenced a rebellious period. He was unaware of any other Aboriginal youth in his area. While he acknowledges the acceptance and love of his parents, he searched for other Aboriginal people, thinking he would "fit in" with them. He formed negative associates and negative lifestyle practices.

1. Mr Lewis was thereafter easily influenced by other Aboriginal youth and commenced antisocial behaviour. To the extent he continued school, he was the only "non-white" student and was called names referring to his colour, which became nasty as he aged. His early education was successful in primary school but the above circumstances eventually took a toll on him; schooling suffered; and he dropped out at Year 9.

1. The new associations formed in Mr Lewis' quest for inclusion exposed him to a life hitherto foreign to him of drugs, alcohol, violence, abuse and criminal activity, which led, it seems, to his downfall.

1. Mr Lewis has had limited involvement in employment and has had one significant relationship, which Mr Lewis regards as generally positive, punctuated as it was, with periods of incarceration. He has two children with this person and considers, subject to prison, the prospects of a continuing relationship with his children and their mother relatively positive.

1. Subject to what may follow, there are no substantial issues relating to mental health, except as to the effect of alcohol and drug abuse and dependence. Mr Lewis is of average intelligence, measured since his latest imprisonment.

1. Lastly I deal with remorse and rehabilitation. Mr Lewis has completed Years 10 and 11 of his schooling while in prison. He describes his children, and the possibility of a positive relationship with them, as his motivation to progress. His prison history discloses a positive effect of cultural programs providing him with role models from within the Aboriginal community.

1. In his evidence, he referred to the shame he felt at his conduct and, in particular, that he could not put his parents through the shame of attending the court hearing. His expression of remorse during evidence was profound and genuine, bringing Mr Lewis to tears or almost to tears.

1. Prior to this offence, and despite a criminal history bearing the hallmarks of drugs, Mr Lewis had been violence free for some thirteen years. I consider he has positive prospects for rehabilitation. That assessment is guarded, as was the assessment of the psychologist. In my view, his prospects improve markedly if he is treated appropriately in custody and supervised appropriately for an extended period in the community.

1. The offender (or more accurately his counsel) seeks to rely on the principles summarised by the Court of Criminal Appeal in R v Fernando (1992) 76 A Crim R 58. See the High Court judgment in R v Bugmy [2013] HCA 37; (2013) 249 CLR 571 at [18] and [36]-[43]. This is not a traditional Fernando case. Those principles are well known and I will not now repeat them. They largely deal with persons, whether Aboriginal or otherwise, from a deprived background where abuse of alcohol and physical abuse are accepted norms of conduct.

1. The offender's exposure to such an environment really results, as earlier stated, from his attempt to find a peer group arising from his exclusion from social groups at school and in his neighbourhood. It does not reflect his home environment. Nevertheless, there are analogies.

1. More to the point seem to be the factors of social exclusion referred to by Professor Baumeister and on which the offender relied in his further supplementary submission.

1. In a most helpful submission, aided by an equally helpful Crown submission, Mr Bruce SC cited some passages from the Baumeister studies. The Crown acknowledged its possible application, at page 7 of its supplementary Crown submissions, in the following terms:

"It is accepted that the evidentiary material provides the court with some bases to conclude that the offender did suffer social exclusion in his formative years. From the Baumeister Study it would appear that the offender's reaction to social exclusion by connecting with his cultural peers and resorting to an antisocial lifestyle marked by alcohol and drug abuse, violence and criminality was expected and possibly inevitable."

1. The thesis of Professor Baumeister can be summarised in the following passage and I apologise for citing it at length. In R.F. Baumeister & C.N DeWall, "The Inner Dimension of Social Exclusion: Intelligent Thought and Self-Regulation Among Rejected Persons" (2005) Journal of Personality and Social Psychology, 888, 589-504, the authors remarked:

"It is easy to propose how people ideally or optimally would respond to social exclusion. They ought to redouble their efforts to secure acceptance. Toward that end, they should reduce their aggressive and antisocial tendencies and increase prosocial behaviour. They should improve at self-regulation so as to perform more socially desirable actions. And even if improved social acceptance is not a promising option, they ought at least to become more thoughtful and intelligent and should avoid self-defeating behaviours, so as to fare better on their own if necessary. Yet our laboratory studies have found the opposite of all of these to be closer to the truth.

Initially we thought that emotional distress would be the central feature of the impact of social rejection, and all behavioural consequences would flow from this distress. This too has been disconfirmed. Across many studies we have found large behavioural effects but small and inconsistent emotional effects, and even when we did find significant differences in emotion these have failed to mediate the behaviours. Indeed, the sweeping failure of our emotion mediation theories has led us to question the role of emotion in causing behaviour generally (but that is another story).

Self-regulation and cognition, instead of emotion, have emerged from our most recent data as the most important inner processes to change in response to social exclusion. Rejected or excluded people exhibit poorer self-regulation in many spheres. They also show impairments in intelligent thought, though these are limited to forms of thought that are linked to self-regulation (that is, thinking processes that depend on effortful control by the self's executive functioning).

Nonetheless, the findings from this work have helped shed light on both the inner and outer responses to exclusion. They help illuminate why many troubled individuals may engage in maladaptive or seemingly self-destructive behaviours. They may also have relevance to the responses of groups to perceived exclusion from society as a whole. Although there are some exceptions, such as the intellectually vigorous culture maintained by Jews during the centuries of discrimination and ghettoization, many groups who felt excluded or rejected by society have shown patterns similar to those we find in our laboratory studies: High aggression, self-defeating behaviours, reduced prosocial contributions to society as a whole, poor performance in intellectual spheres, and impaired self-regulation. Our findings suggest that if modern societies can become more inclusive and tolerant, so that all groups feel they are welcome to belong, many broad social patterns of pathological and unhealthy behaviour could be reduced."

1. See also, J.M Twenge, Baumeister, C.N DeWall, N Ciarocco, J.M Bartels, "Social Exclusion Decreases Social Behaviour" (2007) Journal of Personality and Social Psychology, 92, 56-66.

1. It seems, in a similar manner to Fernando, such a factor, as that espoused by Professor Baumeister, may be used to mitigate or fashion an appropriate sentence, but not so as to impose a sentence that does not reflect the seriousness of the offence.

Conclusion

1. Murder is the most serious of offences and causes the most serious of consequences. This particular crime is objectively below mid-range of the range of criminal conduct within that offence. The maximum sentence is, as I have said, life imprisonment and the standard non-parole period is twenty years' imprisonment. A full-time custodial sentence must be imposed, plus something less than the standard non-parole period is appropriate. The sentence will commence on 1 July 2012. On that date Mr Lewis was arrested and he has since that date remained in custody.

1. I have indicated the matters that I consider significant and relevant. Most of them are dealt with in the provisions of s 21A of the Crimes (Sentencing Procedure) Act 1999. I have taken account of the Judicial Commission statistics and of the number of cases that have been provided to me by both the Crown and the defence. I am particularly taking into account the spontaneous nature of the crime, the spontaneous nature of the circumstances, and the subjective elements already mentioned, including the profound degree of remorse.

1. I find special circumstances. I allow approximately 15% reduction in sentence for the utilitarian value of the plea of guilty.

1. One last matter: it is not the function of the court to dictate the administrative arrangements of the Department of Corrective Services. Nevertheless, I recite from Exhibit 1, being, as earlier stated, the report of the psychologist, the following statement:

"Mr Lewis has a paucity of work related experience and skills. Assistance to find a suitable work placement within the Department of Corrections would be of benefit to assist him to prepare for meaningful employment. Further case management assistance addressing educational and vocational needs would be of further benefit to Mr Lewis to develop work interests and skills necessary to function independently upon release. Mr Lewis reports that he has functioned well in custodial sentences, identifying work programs giving him a sense of purpose." (Exhibit 1, Lia McInnes, Duffy Robilliard Psychologists, at page 19).

1. It is the following that I particularly emphasise:

"Specific programs offered within the Department of Corrections that can begin to address Mr Lewis' varied and complex needs may include but are not limited to The Impact of Dependence Program, Criminal Conduct and Substance Abuse Treatment Program, Getting Smart and SMART Recovery which specifically addressed alcohol and drug use at preparation, change and maintenance phases of recovery, The Violent Offender Treatment Program (VOTP) and the Ngara Nura Program (a culturally sensitive pre-release program)." (Exhibit 1, Lia McInnes, Duffy Robilliard Psychologists, at page 19).

1. I raise that for the reasons already stated relating to the cultural awareness issues and the need for that to be the subject of specific address by Corrective Services. Mr Lewis is not historically a violent offender. If he were eligible for a programme or detention similar to Balund-a (Tabulam) that would be optimal. Otherwise location near the NSW North Coast so the positive influence of his children can be continued and programmes directed to cultural awareness are highly recommended. I direct that these remarks be sent to Corrective Services and placed on his file.

Conviction and Sentence

1. Mr Lewis, please rise.

1. Gareth Mullaya Lewis, you are convicted of murder in that on 1 July 2012, at Tweed Heads, in the State of New South Wales, you did murder David Mitchell.

1. I sentence you to imprisonment for a non-parole period of 13 years, commencing 1 July 2012 and concluding 30 June 2025, the balance of term being a further five years expiring on 30 June 2030.

1. You are eligible for release on 1 July 2025.

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Decision last updated: 05 September 2014