R v Pettiford (Sentence)

[2024] NSWSC 319

Supreme Court

New South Wales

Medium Neutral Citation:

R v Pettiford (Sentence) [2024] NSWSC 319

Hearing dates:

29 February 2024

Date of orders:

27 March 2024

Decision date:

27 March 2024

Jurisdiction:

Common Law - Criminal

Before:

Dhanji J

Decision:

(1)    Kevin James Pettiford is convicted for wounding with intent to murder Nathan Mellows. For this offence, the offender is sentenced to imprisonment for a term of 14 years and 3 months, commencing on 26 November 2019. A non-parole period of 10 years and 8 months is set to commence on 26 November 2019 and expiring on 25 July 2030. The balance of term is 3 years and 7 months and is due to expire on 25 February 2034.

(2)    Kevin James Pettiford is convicted of the murder of Andrew Whyte Murray. For this offence, the offender is sentenced to imprisonment for a term of 33 years and 3 months commencing on 26 August 2025. A non-parole period is set for 20 years and 3 months commencing on 26 August 2025 expiring on 25 November 2045. The balance of term is 13 years and is due to expire on 25 November 2058.

(3)    The total effective term is 39 years comprising a non-parole period of 26 years and a balance of term of 13 years. The earliest date the offender is eligible to be released on parole is 25 November 2045.

Catchwords:

CRIME – sentence – murder and wounding with intent to murder – guilty verdicts by jury – “Hand of Death” – targeting the “less dead” – senseless, brutal murder – admissions made by offender – offender’s mental health – history of homicidal ideation – conflicting views of the offender’s mental health – dispute between experts as to diagnosis of bipolar disorder – relevance of offender’s mental health impairment to sentence - imprisonment for life? – applicable discounts – assistance to law enforcement authorities - totality – victim impact statement – sentence imposed

Legislation Cited:

Crimes Act 1900 (NSW), s 19A, 27

Crimes (High Risk Offenders) Act 2006 (NSW), s 25C(1)

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 30E(3)

Mental Health Act 2007 (NSW)

Mental Health and Cognitive Impairment Forensic Provisions Act 2020, s 4, 28(1)(b)

Cases Cited:

Droudis v R [2020] NSWCCA 322

DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

MDZ v REGINA [2011] NSWCCA 243

Category:

Principal judgment

Parties:

Crown (Rex)
Kevin James Pettiford (Offender)

Representation:

Counsel:
B Campbell with K Biffin (Crown)
J Watts (Offender)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Legal Aid NSW (Offender)

File Number(s):

2019/372723; 2020/6317

Publication restriction:

Nil

JUDGMENT

1. On 21 November 2019, Andrew Whyte Murray, a 56-year-old man was sleeping rough in Tweed Heads. Kevin James Pettiford, having walked past Mr Murray’s unoccupied camp earlier, returned to the location and killed him. He did so by taking a large rock from a nearby seawall which he used to strike Mr Murray’s head. On failing to immediately kill Mr Murray, the offender took another large rock from the seawall and again struck Mr Murray to the head. He repeated this process with a third rock, desisting only as a result of the presence of other people nearby. This was a senseless, brutal murder.

2. The offender was arrested for the murder of Mr Murray on 26 November 2019 and remanded in custody. Whilst at the Shortland Correctional Centre at Cessnock, the offender used wire twist ties and razor blades to construct a weapon which he hid in his cell behind a notice board. On 28 December 2019, Nathan Mellows, at that time an inmate at Shortland, was standing alone in the yard. The offender approached Mr Mellows from behind and, using the weapon, slashed his throat with the intention of severing the carotid artery and killing him.

3. After a trial by jury the offender was convicted of both offences. At that trial the jury rejected the offender’s defence that he was not criminally responsible on the grounds of mental illness. With respect to the murder charge, the partial defence, that he was substantially impaired as a result of a mental health impairment so as to warrant a verdict of manslaughter, was also rejected.

4. The offender is to be sentenced for the crimes of murder and of wounding with intent to murder. The crime of murder, involving, as it does, the taking of a human life through a deliberate act, is the most serious of criminal offences. This is reflected in the maximum penalty of imprisonment for life: Crimes Act 1900 (NSW), s 19A. A standard non-parole period of 20 years applies to the offence. The standard non-parole period is the non-parole period for an offence, taking into account only the objective factors affecting the relative seriousness of that offence, for an offence in the middle of the range of objective seriousness. The offence of wounding with intent to murder carries a maximum penalty of 25 years: Crimes Act, s 27. A standard non-parole period of 10 years applies.

5. Acknowledging these guideposts and the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), it is necessary that I identify the factors that are relevant to the sentence to be imposed for each offence, consider their significance, and then exercise my judgment as to the appropriate sentence given all the facts of the case.

The victim impact statement

6. The Court was grateful to Mr Murray’s daughter for sharing on behalf of Mr Murray’s family and broader community, the impact of their loss. That ongoing pain and loss is evidence of the harm done to the community more broadly by this crime.1  The Court extends its sympathies to all those affected by the death of Mr Murray.

7. Mr Mellows declined to cooperate with police. I did not hear from him at trial. Nor has he provided a victim impact statement. I do not take this as evidence that the impact on him was not significant. Mr Mellows had been, for whatever reason, deprived of his liberty by the State. Whilst not enjoying his freedom, he was entitled to be safe. There is no reason to think that the impact on him was other than that to be expected from an unprovoked attack of the nature of that which took place.

The sentence proceedings

8. In the sentence proceedings, the Crown tendered the Crown sentence summary, the offender’s criminal and custodial records, and the victim impact statement. [1]

   1. Crimes (Sentencing Procedure) Act, s 30E(3)

9. The offender tendered a psychiatric report of Dr Jeremy O’Dea dated 2 November 2021, records from the Justice Health & Forensic Mental Health Network from 18 July 2023 to 13 December 2023, and Corrective Services NSW Psychology Service Progress Notes for the period 8 March 2023 to 18 July 2023. [2]

   2. Exhibit SA

The facts

10. The physical acts of the offender were largely undisputed at trial. A large portion of the evidence in relation to each count consisted of admissions made by the offender when interviewed by police. Further, the offending in count 2 was captured by closed-circuit television at Shortland Correctional Centre at Cessnock. [3] The facts I will recite are taken largely from this evidence, as reflected in the written submissions of each party at sentence.

    3. Exhibit S1

Count 1 – murder

11. On the evening of 21 November 2019, the deceased was sleeping in a makeshift camp adjacent to the Jack Evans Boat Harbour at Tweed Heads.

12. From at least 19 November 2019, the offender, then aged 34, was also sleeping rough in the area and had his own camp on a hillside between the Jack Evans Boat Harbour and Duranbah Beach.

13. On the evening of 21 November 2019, the offender was walking back to his tent when he observed the deceased’s possessions near a windbreak adjacent to a walkway and bike path which runs beside the harbour. The offender decided that if there was a person at this location when he returned later that night, he would kill that person. The offender then returned to his camp and watched two films on his tablet computer.

14. Later that evening, likely just before midnight, the offender returned to the location and found the deceased asleep in a sleeping bag. The offender sat on a nearby bench and vacillated about whether to kill him.

15. The offender then removed his thongs in order to avoid making noise as he approached the deceased. He selected a large rock from a nearby seawall, before standing over the deceased and striking him on the side of the head with the rock with the intention of killing him.

16. The deceased made a noise (likely agonal breathing), at which point the offender selected a larger rock from the seawall and again struck the deceased to the side of the head several times, again with the intention of killing him. The offender repeated this process with a third large rock.

17. The offender desisted only when he saw some people approaching from the distance. He disposed of the rocks by throwing them into the water from a nearby observation deck.

18. The deceased was discovered the next morning. His cause of death was determined to be multiple blunt force injuries to the head. There were multiple and extensive blunt force injuries and abrasions to the deceased’s face and head, including several large lacerations and fractures, including a skull fracture.

19. After his attack upon the deceased, the offender returned to his tent, gathered his belongings and left the area on foot, leaving only some incidental items behind. He went to a nearby amenities block and showered to remove any traces of blood. He changed his clothes and disposed of the bloodstained clothes he had been wearing, as well as his tent, in a public bin.

20. The offender walked through the night around the headland at Point Danger and Schnapper Rocks, to Rainbow Beach and then to Coolangatta and Currumbin in Queensland. He told the police when he was interviewed that he had kept to the beach to evade detection.

21. On the morning of 22 November 2019, the offender caught a bus from Currumbin to Broadbeach, Queensland. On 26 November 2019, he boarded a bus in Surfers Paradise bound for Sydney. Police entered the bus when it stopped in Tweed Heads and took the offender into custody in relation to a Victorian arrest warrant.

22. Later that day, at 6:02pm, the offender was told by police that they were making enquiries about the death of Mr Murray and that they suspected the offender held information in relation to that. When asked if he had any questions the offender replied, "[y]ou know I, I actually thought about this. I thought, I thought about it long and hard. I just can't lie. I did it. It was me." He explained that he had "killed him" and that he had "bashed his head in." [4]

    4. Exhibit X

23. At 7:16pm that evening, the offender was interviewed by police and made further extensive admissions concerning the killing of the deceased. [5] In doing so, the offender told police he had a long-held desire to kill. [6]

    5. Exhibit M; MFI M, p 10

    6. Exhibit N; MFI N, p 22 and pp 37- 43

24. The offender was shown and admitted that he was the author of a cryptic letter, which he had posted to Tweed Heads Police Station, in which he referred to himself as "The Hand of Death". [7]

    7. Exhibit N; MFI N, pp 12-13

25. The offender told police he had targeted a homeless person because the homeless were the “less dead” and “less alive, almost”. [8] He described vacillating immediately prior to striking the deceased.

    8. Exhibit N; MFI N, pp 92-94

26. While the offender made full admissions to the police he did not exhibit anything that could be described as remorse. If anything, he appeared to enjoy the process of being interviewed. He did however, suggest the situation could have been avoided had he been paid proper attention years earlier when he attended a hospital emergency department and disclosed homicidal ideation.

Count 2 – wound with intent to murder

27. The offender was admitted to custody on 27 November 2019 and was transferred to Shortland Correctional Centre at Cessnock on 22 December 2019.

28. At about 12:57pm on 28 December 2019, Mr Mellows was standing alone in the exercise yard. The offender approached him from behind. The offender grabbed the victim with his left hand and, using the handmade bladed weapon I have described, slashed the right side of the victim’s throat, with the intention of severing the carotid artery and killing him.

29. The victim broke free of the offender’s hold and fled to a cell pod, where he was assisted by Correctional Officers. He suffered a large laceration, 7 centimetres in length, which required 12 staples. The injury was considered serious but not life threatening because it did not involve any of the vital structures of the neck. It did come very close.

30. After a scuffle involving other inmates, the offender also entered the cell pod, volunteered the bladed weapon to a Correctional Officer and waited for other Correctional Officers to arrive.

31. When asked what had happened, the offender said, "I just tried to kill him." [9] He told the Correctional Officers he did not know the name of the person he had tried to kill and that person had not done anything to provoke him. He said that he had wanted to target a person who would not be missed and when he overheard the victim’s circumstances of having "nowhere to go, no one" upon his release from custody, he thought "alright beautiful." [10]

    9. Exhibit N; MFI N, p 110

    10. Exhibit Z; MF1 Z, p 2

32. On a pin board in his cell, the offender had made annotations in pen which related to death and killing. The offender had written "[c]arotid 12 seconds [subclavian] 3 seconds" [11] which was a reference to how long it would take a person to bleed to death if those arteries were cut.

    11. Exhibit Z; MFI Z, p 2

33. When interviewed by police on the afternoon of the attack, the offender said that he had been carrying the weapon since his arrival at the Centre, having made it on the night he arrived. He said he had been surveying the other inmates in the hopes of identifying someone who was “less dead” and “that no one’s going to miss.” [12]

    12. Exhibit AA

34. The offender told police he was intending to carry out the attack on Christmas Day, but postponed his plan because there was a movie he wanted to watch, and that on Boxing Day he postponed again because he wanted to watch the cricket, ultimately settling on his victim on 28 December. [13]

    13. MFI BB, p 2

35. The offender was further interviewed on 8 January 2020 at Newcastle Police Station. [14] He told the police about his struggles to subdue his urges to kill people. He described himself as "calculated and controlled evil" [15] and said, "I love killing". [16]

The gravity of the offence

14. MFI BB, p 2

15. Exhibit CC

16. Exhibit CC; MFI CC, p 26

The offence of murder

36. The offence was senseless. It was brutal in its execution. The offender intended to kill. That intention did not arise fleetingly but was the result of a decision made when the offender saw the deceased’s camp earlier that day. Mr Murray was entirely defenceless. The offender acted on a warped and utterly abhorrent view that Mr Murray’s life was somehow less valuable as a result of his circumstances. Those matters reflect a complete lack of humanity on the part of the offender. I regard this as an offence involving a high level of objective seriousness.

The attempted murder

37. The offence of wounding with intent to murder was similarly callous. It showed a similar disregard for human life. As I have said, the victim had lost his liberty. That should not mean that he, or others in his situation, should also suffer serious violence. There is no evidence of the physical effect on Mr Mellows, other than that he required 12 staples to close the wound. Mentally, there is no doubt that the event must have been terrifying. Although no evidence was tendered, it is likely that there has been some ongoing impact. As I have said, there is no reason to think that the impact was other than that to be expected in the case of an unprovoked attack which resulted in a wound very close to the targeted crucial artery which, if severed, was likely to result in death. For the purposes of considering its place on the scale, it is to be remembered that all offences of attempted murder involve an intention to kill. The offence was however, entirely unprovoked. It involved the use of a weapon the offender had constructed for the purpose. He had secreted the weapon while waiting for what he regarded as a suitable opportunity. I regard this as a serious offence of its kind and again, in the upper range of such offences.

The jury’s verdict and its consequences

38. At sentence there was a dispute as to the significance of the jury’s verdict to the questions raised by the expert psychiatric evidence called at trial. The offender maintains that he was affected by a bipolar disorder at the time of the offences, and submitted that this is not inconsistent with the verdict of the jury. It was submitted that the illness operated in mitigation, including by reducing the offender’s moral culpability. It is necessary, in this context, to consider the significance of the jury’s rejection of the mental illness defence run at trial.

39. The offender’s case at trial was that the jury should return a special verdict of not criminally responsible on the grounds of mental health impairment. With respect to count 1, that is, the murder, he sought, in the alternative, a verdict of manslaughter on the basis of substantial impairment. The Crown contended that the appropriate verdict was guilty with respect to each count. The offender’s trial commenced on 7 November 2023 and concluded on 6 December 2023 with the jury’s findings of guilt with respect to each count.

40. The evidence before me is that which was led at trial, supplemented by the additional evidence tendered on sentence. It will be necessary to refer to some of the trial evidence in the course of making relevant factual findings. The evidence tendered on sentence will be discussed.

41. While the offender was found guilty by a jury, it is necessary for me to determine the facts. Any determination I make is constrained only in that it must be consistent with the verdict of the jury. In the present case, this means that I must sentence the offender on the basis that, by his deliberate act, he caused the death of Mr Murray and wounded Mr Mellows. There was no issue that, on each occasion, the act was accompanied by an intention to kill.

42. Matters adverse to the offender must be proved by the Crown beyond reasonable doubt. Matters relied upon by the offender in mitigation must be proved by him on the balance of probabilities. Some matters may remain unknown.

What is the effect of the jury’s verdicts on the expert evidence?

43. The Crown submitted that the jury’s verdict carried with it the rejection of the expert opinion of the offender’s expert in favour of that led by the Crown. Dr Jeremy O’Dea was relied on by the offender in support of his defence. Professor David Greenberg was relied on by the Crown. Professor Greenberg gave evidence that neither the defence of mental health impairment, nor the partial defence of substantial impairment was available. It is not for me to guess what path the jury took to conviction. Different jurors may have taken different paths. The jury was instructed they did not have to accept all of a witness’s evidence. On the evidence before me, and consistent with the jury’s verdict, the following possibilities are open:

1. acceptance of the opinion of Professor Greenberg and the rejection of that of Dr O’Dea;

2. acceptance of Dr O’Dea’s opinion as to the impairment suffered by the offender (and consequent rejection of Professor Greenberg’s opinion), together with a finding that, despite the impairment, the offender was able to reason with a moderate degree of sense and composure about the wrongfulness of his act (and was not so affected as to warrant liability for manslaughter rather than murder).

The offender’s mental health

Conflicting views of the offender’s mental health impairment

44. The evidence as to the offender’s mental health impairment occupied the bulk of the trial. It is not possible to provide a complete analysis of that evidence. My goal is to provide reasons that are, to the extent possible, readily comprehensible to all who may be interested in understanding how I have arrived at the sentences I will impose (that is, not only lawyers and psychiatrists).

45. Having regard to what I have already said, to the extent that there was evidence the offender was suffering a mental health impairment, I must sentence the offender on the basis that, with respect to each offence, he knew the nature and quality of his act and he knew that the act was wrong. Knowledge that the act was wrong means that he was able to reason with at least a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong. [17]

    17. Exhibit CC; MFI CC, p 27

46. Further, with respect to the offence of murder, the rejection of the partial defence of substantial impairment means he was either not impaired in his capacity to understand events, judge whether his actions were right or wrong, or to control himself, or if he was, the impairment was not so substantial as to warrant him being sentenced for manslaughter rather than murder.

47. While the defence of mental illness and the partial defence of substantial impairment were rejected by the jury, the evidence before the jury as to those issues remains at least potentially relevant to the sentencing exercise. I additionally have the report of Dr O’Dea of 2 November 2021 (essentially reflecting his evidence), Justice Health records and psychologists’ notes [18] relevant to the offender’s mental health condition. It is necessary for me, on sentence, within the bounds of the jury’s verdict, to determine whether a relevant mental health condition existed and, if so, its impact.

    18. Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), s 28(1)(b)

48. It was accepted at trial by all of the relevant experts that the offender suffered a mental health impairment. That is, that he had a temporary or ongoing disturbance of thought, mood, volition, perception or memory, which impaired his emotional wellbeing, judgment or behaviour and would be regarded as significant for clinical diagnostic purposes. [19] There was, however, a marked difference of opinion as to what the impairment was, and consequently any impact it had on the offender’s conduct in the commission of the offences.

    19. Exhibit S1

49. There is no issue that each of the experts was eminently well qualified to express the opinions given.

Professor Greenberg

50. Professor Greenberg was retained by the Crown. He gave evidence that the offender suffered from a mixed anxiety disorder with panic attacks and agoraphobia [20] and an alcohol misuse disorder. In his view the anxiety disorder was in remission or partial remission because it was being treated with paroxetine. [21] Professor Greenberg also considered that the offender had personality issues, described as features of a cluster B personality disorder. Cluster B personality disorder includes, relevant to Dr Greenberg’s opinion, antisocial personality disorder and narcissistic personality disorder. Professor Greenberg’s opinion that such personality traits do not constitute a mental health impairment was not in issue.

    20. Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), s 4

    21. See for example Tcpt, 15 November 2023, pp 389.22-30, 414.42-416.42

51. Professor Greenberg had been provided with reports prepared by Dr O’Dea which indicated his opinion that the offender was, at the relevant times, suffering a manic state as a consequence of a bipolar disorder which had the result that, while he was aware on each occasion of the nature and quality of his act, he was not able to reason with a moderate degree of sense and composure as to whether the act was wrong. Professor Greenberg did not agree with Dr O’Dea’s opinion as to the presence of bipolar disorder.

Dr Elliott

52. Dr Gordon Elliott saw the offender in custody on 2 December 2019, on 9 December 2019 and again on 1 July 2020 in his role as a psychiatrist with Justice Health. He was the first psychiatrist to assess the offender in custody. Dr Elliott was not retained as an expert for the purposes of providing an opinion on the issues in the trial. He was called to give evidence of the opinions he formed in 2019 and 2020 as a result of his engagement with the offender. In this regard he had earlier provided a report prepared for the Local Court dated 7 July 2020 in which he questioned Dr O’Dea’s opinion as to a bipolar disorder noting that the offender “did not disclose a history of the sustained or pervasive mood disturbance of a bipolar disorder” [22] , but, rather, “gave a history of the moment to moment dysregulation of an individual with a significant cluster B or antisocial personality disorder.” [23] This obviously supported Professor Greenberg’s opinion.

    22. Tcpt, 16 November 2023, p 474

    23. MFI 12, p 6

53. In cross-examination, Dr Elliott acknowledged his opinion given in 2020 was formed in the absence of a significant body of information relating to the offender’s medical history. Having been carefully taken through those records, Dr Elliott agreed that the primary diagnosis for the offender should not be antisocial personality disorder. [24] He agreed that some form of bipolar disorder, perhaps accompanied by personality vulnerabilities was a reasonable suggestion. [25] In re-examination Dr Elliott said, in relation to his earlier rejection of a diagnosis of bipolar disorder, that he “wouldn’t express it so unequivocally now”, [26] the material having given him reason “to consider the diagnosis afresh”. [27] When asked whether he had any firm view about a diagnosis of bipolar Dr Elliott replied “No, I think he requires ongoing assessment”. [28]

    24. MFI 12, p 6

    25. Tcpt, 13 November 2023, p 216

    26. Tcpt, 15 November 2023, p 341

    27. Tcpt, 15 November 2023, p 382

    28. Tcpt, 15 November 2023, p 382

54. It is important to note that Dr Elliott gave evidence in terms of making a diagnosis. He was not retained by either side to provide an opinion on the issues of criminal responsibility or substantial impairment. The question as to the presence of a particular impairment falls for determination by me on the balance of probabilities. While there was no evidence specific to the issue it was accepted by the Crown in the course of the sentencing proceedings that a psychiatrist in providing a diagnosis can be taken to be applying a higher standard than the balance of probabilities. Ultimately, Dr Elliot was not pressed as to a diagnosis or even an opinion as to the most likely explanation for the offender’s presentation. The basis for his earlier opinion explaining the offender’s presentation was, however seriously undermined. This is not, in any way, a criticism of Dr Elliott. To the contrary. Dr Elliott properly acknowledged the need to adjust his opinion as a result of new information. Reading Dr Elliott’s evidence as a whole, it provides some support for bipolar disorder as the most likely explanation for the offender’s presentation.

Dr O’Dea

55. Dr O’Dea, in the course of his duties with Justice Health saw the offender on 17 March 2020. He formed the view the offender was experiencing a manic episode symptomatic of a bipolar disorder. Dr O’Dea’s view was that the paroxetine prescribed to the offender was inappropriate. (There is no issue that paroxetine will not address a mood disorder.) Dr O’Dea advised the offender that his medication should be changed from paroxetine to a mood stabiliser such as olanzapine. The offender was not accepting of this advice and, as a result, Dr O’Dea (ultimately with a second psychiatrist) scheduled him under the Mental Health Act 2007 (NSW). Dr O’Dea again saw the offender on 24 March 2020 and again assessed him as more likely suffering a manic episode than a personality disorder alone. He was ultimately admitted to Long Bay Hospital on 23 April 2020 and commenced on olanzapine.

56. Dr O’Dea gave evidence that the offender’s progress subsequent to being scheduled and dosed with olanzapine confirmed his initial impression of a bipolar disorder.

Resolving the conflict in the medical evidence

57. To resolve the conflict in the medical opinions it is convenient to consider the broad chronology.

58. The statement of the offender’s mother was tendered. She described the offender as having enjoyed his childhood, noting that he was a “good older brother” [29] to her disabled younger child.

    29. Tcpt, 15 November 2023, p 382

59. Ms Pettiford said the offender had trouble dealing with a relationship breakup resulting in her encouraging him to see the family doctor at the Coolaroo Clinic. This resulted in the prescription of anti-depressant medication. This appears to have been in early 2006, when the offender was 20 years old. Ms Pettiford described the offender as undergoing “a change in [his] personality” [30] around this time. She said the anti-depressant medication “slowly made him worse, and that was the day I lost my son”. [31] Importantly, the expert evidence was to the effect that personality does not change. Records from the Coolaroo Clinic established the medication the offender was most commonly prescribed was paroxetine.

    30. Exhibit U, [10]

    31. Exhibit U, [13]

60. Ms Pettiford’s account, other evidence from the general practice attended by the offender, particularly earlier records referring to a possible cluster C personality disorder, and the unchanging nature of personality excluded the diagnosis of a cluster B personality disorder. Professor Greenberg sought to accommodate this by describing the offender as having “features” [32] of a cluster B personality disorder. Ms Pettiford’s evidence, and the records of the general practice, however, suggest that the offender’s presentation was less about personality type than some form of mental impairment, perhaps affected by medication. Dr O’Dea’s evidence, uncontested in this regard, was that anti-depressant medication can be counter-productive in treating a mood disorder.

    32. Exhibit U, [13]

61. Records from the Coolaroo Clinic revealed a reasonably consistent pattern of diagnosis of depression and anxiety, for which paroxetine was prescribed. The question of a possible mood disorder was raised. This possible diagnosis was, however, never tested with the stable prescription of a mood stabiliser. In large part this appears to have been due to the offender’s preference for paroxetine. The evidence was that persons with mood disorders are often resistant to medications that subdue their elevated moods, with a preference for medications such as paroxetine which are, as I have said, counterproductive to control a mood disorder. The history of treatment for anxiety and depression was supportive of Professor Greenberg’s view. Nonetheless, Dr O’Dea’s view, that the offender had been misdiagnosed from an early stage and received inappropriate medication, also had support in the evidence.

62. It is also relevant to note in this context that the offender himself reported a long history of homicidal ideation. He said he had had feelings and thoughts of harming others from a young age. This supported Professor Greenberg’s opinion that the offender, in killing Mr Murray and attempting to kill Mr Mellows, was simply acting on this long held desire. While the offender reported having had urges at a young age, the first serious manifestation of the offender’s homicidal urges was in early 2012, when the offender attended a hospital emergency department aged 26 or 27 years old. He reported having seen a man and woman walking together and having an urge to kill the man and rape the woman. He was seen by a psychiatrist and diagnosed as having a “personality disorder with antisocial and narcissist traits”. [33] This is consistent with a type B personality disorder. In coming to this diagnosis it seems that the psychiatrist in 2012 did not have a complete medical history. The offender’s earlier history, obtained for the purposes of the trial, established that, to the extent that the offender had a personality disorder, or aberrant personality traits, it was of a “cluster C” [34] nature. Dr Elliott acknowledged this to be the polar opposite of a type B personality disorder. This casts serious doubt on the 2012 diagnosis of type B or anti-social personality disorder. That 2012 diagnosis, it seems, may have followed the offender and influenced later diagnoses, at least that of Dr Elliott, (a matter he squarely acknowledged), and to some extent, Professor Greenberg.

    33. Tcpt, 16 November 2023, p 437

    34. Tcpt, 16 November 2023, p 439

63. In the years subsequent to the offender’s attendance at the hospital in Melbourne, he continued to be primarily prescribed paroxetine and he abused alcohol. On his report he was self-medicating to deal with his violent urges. He was convicted of a number of violent offences, albeit, particularly in the present context, of a relatively minor nature.

64. The offender murdered Mr Murray on 21 November 2019. On his arrest, he engaged in a lengthy interview with police. He described his thought processes before the killing, including his vacillation as to whether to act. Professor Greenberg’s opinion was that the offender’s presentation at that time was inconsistent with mania. Dr O’Dea, however, considered his presentation to be consistent with mania, pointing to grandiosity, disinhibition and elevated mood. His presentation was, at the least, incongruent. Whether that incongruent presentation was the result of personality or illness is in issue.

65. The first psychiatric assessments in custody were those of Dr Elliott on 2 December 2019 and 9 December 2019. He did not think the offender was in a manic state. He did, however, observe the offender to be incongruously cheerful. He said his grandiosity led him to consider mania as a possibility which should not be excluded. [35] Dr Elliott suggested a trial of Epilim, a mood stabiliser which would treat any mood disorder that was present. The offender, however, refused this treatment and was prescribed, as he had been repeatedly prescribed in the community, paroxetine.

    35. Tcpt, 13 November 2023, p 214

66. Material found in the offender’s cell on 10 December 2019, written by him, is consistent with the grandiosity referred to by Dr Elliott. [36]

    36. Tcpt, 13 November 2023, pp 210-211

67. On 28 December 2019, the offender attempted to kill Mr Mellows. At this time, he was on paroxetine alone. Given the custodial setting and available records there is no suggestion he was not taking the medication as prescribed or that its efficacy was impacted by alcohol consumption. A significant aspect of the evidence was the offender’s assertion that he had planned his attack, evident in the preparation and storage of the weapon, but had deferred its execution. He had originally thought to execute his plan on Christmas Day but delayed because he became aware that “Star Wars” was on television that night and he wanted to watch it. The next day, Boxing Day, he again deferred his actions as he wanted to watch the cricket. It is not entirely clear what occurred on 27 December, however the offender did explain that there was some delay as a result of him changing targets with him ultimately choosing Mr Mellows when he overheard him giving a “sob story” leading the offender to conclude he had nothing to live for. Professor Greenberg’s evidence was that this was evidence of planning and decision-making inconsistent with mania. Dr O’Dea did not regard the sequence of events as inconsistent with mania. Logically, one explanation is that the impact of the bipolar disorder varied between 26 December and 28 December 2019, leading to the offender acting on his plan on the later date. A further potential explanation is that some capacity to plan is not necessarily inconsistent with mania.

68. When interviewed subsequent to the attack on Mr Mellows, the offender’s presentation was somewhat bizarre. There was, again, an obvious grandiosity.

69. On 16 January 2020, the offender was assessed by Dr Matthew Hannon whose impression was of personality disorder with narcissism. He did not diagnose the offender with a mental illness. [37] The material available to Dr Hannon was limited. Dr Elliott gave evidence that had Dr Hannon had access to additional evidence of the offender’s history, apparently inconsistent with his diagnosis, he would wish to revisit his opinion. It is not possible to put any weight on Dr Hannon's diagnosis given this, and the fact he was not called to give evidence.

    37. Exhibit V

70. On 9 March 2020, the offender attacked a prison officer with a bladed weapon. When interviewed by police in relation to this event [38] the offender’s presentation was again incongruous, on this occasion extremely so, consistent with his counsel’s description of a “deterioration”. There was again some planning involved in this attack. There was evidence that persons suffering from mania may be able to engage in goal-directed behaviour in circumstances where those goals are, at the least, ill-advised as a result of the presence of mania.

    38. Tcpt, 13 November 2023 , p 197

71. On 17 March 2020 and 24 March 2020, as noted above, Dr O’Dea saw the offender for the first time and considered him to be in a manic state resulting in him being scheduled under the Mental Health Act.

72. On 26 March 2020, Dr Sarah Jane Spencer assessed the offender indicating likely psychotic symptoms requiring further investigation and agreed with Dr O’Dea’s decision to schedule the offender (this step requiring the approval of two psychiatrists). Placement in hospital was delayed by the availability of beds.

73. On 28 March 2020, the offender ceased paroxetine and on 2 April reported receiving olanzapine.

74. On 14 April 2020, the offender reported to Dr O’Dea that he was taking only half his dose of olanzapine. Dr O’Dea considered that he continued to present as manic.

75. On 23 April 2020, the offender was admitted to Long Bay Hospital as an involuntary patient in accordance with the schedule signed by Drs O’Dea and Spencer. On 27 April 2020, the offender, on his request, was re-prescribed paroxetine. There was no evidence as to the reason for this other than the offender’s request. On 6 May 2020, at his request, the offender’s dose of both olanzapine and paroxetine was increased.

76. On 3 June 2020, the offender was discharged from the Long Bay Hospital. The notes record he had no overt psychotic symptoms at that time. This could of course, be the result of the absence of psychotic illness, or the effect of the olanzapine. On 9 June 2020, Dr O’Dea endorsed the latter, noting his provisional diagnosis was of a manic episode of bipolar effective disorder which had responded well to treatment.

77. On 1 July 2020, Dr Elliott saw the offender for the purposes of preparation of his report to the Local Court dated 7 July 2020. While, at that time Dr Elliott clearly disagreed with Dr O’Dea’s diagnosis, that position was ultimately modified in the manner I have discussed.

78. Perhaps most tellingly, from that time on, a period approaching four years, the offender has been in custody without evidence of the grandiosity exhibited between his arrest and his admission to Long Bay Hospital. There were two incidents involving breaches of internal discipline when the offender refused to return to his cell. Those incidents are of a markedly different character to the murder, attempted murder and the attack on the prison officer. All doctors agreed that the offender’s presentation had changed markedly. Dr O’Dea’s evidence was that this was confirmatory of his diagnosis. That is, from the time the offender stabilised on olanzapine, the grandiose presentation that Dr O’Dea regarded as evidence of mania subsided.

57. Professor Greenberg explained the change in the offender I have discussed by reference to the offender being on paroxetine (without the interference of inappropriate dosing and alcohol as occurred in the community). He also opined that the olanzapine would have a sedating effect on a person with an anxiety disorder. Not satisfactorily explained however, is the fact that the offender was on paroxetine alone when he attempted to murder Mr Mellows and when he attacked the prison officer. His presentation after those incidents is so markedly different to that over the years following the prescribing of olanzapine, the more likely conclusion is that the olanzapine has been effective, in supporting the diagnosis of bipolar disorder. While acknowledging the possibility that olanzapine has had a sedating effect on the offender, the change in presentation is more suggestive of the offender’s earlier grandiose presentation requiring an explanation other than personality. This is particularly so given the evidence of his personality type prior to the prescription of paroxetine, when he was in his late teens and early 20s which was entirely inconsistent with a Type B personality disorder, or traits of such. As was made clear, personality does not change. If medication brings about an apparent change it is because it is operating on illness, not personality.

58. My view expressed above is fortified by my assessment of the witnesses. Dr Elliott presented as thoughtful and exhibited a willingness to reconsider the opinions he had previously expressed in the face of new information. Dr O’Dea, while maintaining his opinion, gave careful and responsive answers to questions in cross-examination asked in order to test that opinion. He made concessions without abandoning his core opinion. Professor Greenberg by contrast presented as committed to the opinion he had expressed in writing. He was, at times, reluctant to directly answer questions asked in cross-examination, preferring to restate matters confirming his opinion rather making appropriate concessions. Further, in ruling out the possibility the offender was suffering mania he pointed to the absence of features such as surviving on very little sleep and flight of ideas resulting in what I would describe as a floridly manic presentation. Dr O’Dea by reference to the DSM-V TR criteria noted that such symptoms are not mandatory but rather are potential symptoms on a list of which only a certain number are required to qualify for a diagnosis. [39] Dr O’Dea, while maintaining his opinion, distinguished the offender’s presentation from “a full-blown 100% mania” where all possible symptoms are present, a circumstance he said was highly unusual. [40]

    39. Exhibit KK

    40. Tcpt, 27 November 2023, p 860

59. I am satisfied the offender was suffering (and continues to suffer) from a bipolar disorder. It is necessary then to consider the relevance of this disorder to the sentencing of the offender.

The relevance of the offender’s mental health impairment to the sentence

82. The courts have had long experience with, and have developed principles applicable to, persons with mental health conditions who commit crimes.

83. In the present case, the offender did not submit that, if the diagnosis of Dr O’Dea were to be accepted, the offender’s condition was so connected with the commission of the offences as to impact their objective gravity. He did, however, submit that the offender’s bipolar disorder operated so as to impact his moral culpability. [41] It is clear based on the jury’s verdicts that the offender knew his act was wrong in the relevant sense, that being that he could reason with at least a moderate degree of composure. Further, in relation to the offence of murder any impairment in control or otherwise was not of a nature such that it warranted a finding of manslaughter. In the context of what I have found to be the presence of a bipolar disorder, the evidence of the offender’s vacillation in relation to the offence of murder, does suggest some attempt to resist the urge to kill. I am of the view that the offender’s condition materially impacted on his decision to kill Mr Murray with some consequential impact on what might be described as his moral culpability. Subsequent to the murder, the offender’s grandiosity when dealing with police supports that conclusion. That impact is to my mind also demonstrated by the absence of evidence the offender has acted on violent urges following his being treated for bipolar disorder.

    41. Tcpt, 23 November 2023, p 850

84. In relation to the attempted murder of Mr Mellows, there is no evidence of the same vacillation. Rather the offender acted on a plan which he deferred for reasons so banal, the plan and those reasons suggest a complete disregard for human life. The evidence is, however, consistent with the offender’s grandiose view of himself and his plans, which I find were related to a manic episode. There is again some impact on the offender’s moral culpability.

85. To better understand the view I have formed, it is helpful to note the offender’s presentation to emergency in 2012 seeking help to address his violent impulses. His attempt to obtain help suggested the urges were “ego-dystonic”, that is, inconsistent with the offender’s view of himself. [42] The offender’s view of himself, particularly as demonstrated in the interviews after the murder, the attempted murder and the attack on the prison officer, suggested the offender’s view of himself changed, or his ability to control himself changed, or some combination of the two.

    42. See DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [96]; MDZ v REGINA [2011] NSWCCA 243 at [67]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [53].

86. In my view the offender’s mental health materially contributed to the commission of both offences. The need for denunciation is, consequently, reduced. The weight to be given to general deterrence is also reduced, but by no means eliminated, on the basis that the offender’s condition makes him an inappropriate vehicle for providing an example to others. While a mental illness can, in some cases, increase the onerousness of imprisonment, there is no evidence in the present case that the offender’s sentence will bear more heavily on him because of his mental condition.

87. I have considered whether specific deterrence should have an increased role. The offences were committed in the context of what I have found to have been an undiagnosed bipolar disorder. The offender is now being treated for that disorder. While there is some way to go, the evidence of the offender’s response to treatment is such that I would not increase the weight to be given to specific deterrence based on his mental condition. In coming to this view it remains the case that both specific deterrence and the protection of the community have an important role to play in any sentence to be imposed.

The offender’s subjective circumstances

88. The offender was 34 years old at the time of the offences. He had a criminal history for offences committed interstate, which, while containing a number of offences involving violence, involved nothing remotely approaching the seriousness of the present offences. That history dates back to 2013, when the offender was convicted of offences of intentionally cause injury, wilfully damage property, unlawful assault and assault in company, for which he was sentenced to an aggregate term of 4 months imprisonment, wholly suspended. The offender was next before a court in 2017, in relation to an offence of stealing, for which no conviction was recorded and he was fined $500. In 2018, the offender was convicted of two counts of assault, for which he was sentenced to 2 months imprisonment, wholly suspended on entry into a good behaviour order. That year, the offender was also charged with obstructing a police officer, and contravening a direction or requirement, for which without conviction he was fined $350 and $300 respectively. In 2020, the offender came before the court on a charge of assault against a law enforcement officer inflicting actual bodily harm, for which he was sentenced to a term of imprisonment of 18 months with a non-parole period of 12 months. The offender’s record was not submitted to be such as to operate as a matter in mitigation, nor as a matter adverse to the offender. I agree with that approach.

89. There was little put on behalf of the offender in mitigation. The offender told Dr O’Dea in the course of his contact with him in June and October 2021 that, while after killing Mr Murray he felt “relieved” and “euphoric”, looking back he wished he had not done it “because it’s a waste of a life”. [43] The Crown suggested that the offender was here speaking of his own life being wasted as a result of his incarceration. In my view the more natural meaning is that the killing itself was a waste of life. I was not asked and would not find this to be evidence on which I could find remorse. I do, however, regard it as evidence, together with the offender’s ongoing medical treatment and, it appears, corresponding change in conduct in custody, as supporting a conclusion that the offender has at least guarded prospects of rehabilitation.

    43. Tcpt, 21 November 2023, p 632

90. I accept that during his youth the offender exhibited pro-social values. In 2006, when he was 21 years old he intervened when he and a friend observed a woman being attacked and a knife being held to her throat. He was commended by the police and the victim for his bravery in this episode. He had no criminal record until his late 20s. The offender’s record, as I have indicated, is limited. The offender’s early past and his record to some extent inform the risk of him re-offending, but the extent to which they do so has been effectively overtaken by more recent events. While that past suggests there is some good in the offender, on the evidence there is also a risk he will re-offend, and do so in a serious way, particularly if he is not compliant with medication. That brings community protection into focus in the sentencing exercise.

Imprisonment for life?

91. With respect to the offence of murder, s 61(1) of the Crimes (Sentencing Procedure) Act requires me to impose a sentence of imprisonment for life if I am 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”.

The Crown submitted I would be so satisfied. I have found that the offender’s culpability for the murder is reduced as a result of his mental condition. It is not necessary to consider whether the offence would otherwise have called for a life sentence. On this basis alone I cannot be satisfied that the offender’s culpability is so extreme that retribution, punishment, community protection and deterrence require that a life sentence be imposed.

Applicable discounts

92. The offender submitted that he is entitled to a discount for his assistance to law enforcement authorities in the investigation of each of these offences pursuant to s 23 of the Crimes (Sentencing Procedure) Act. The offender engaged in lengthy records of interview with police after each offence in which he made full admissions to his conduct. He also elaborated on his state of mind in a manner accepted by the experts, and consequently the parties, as entirely frank. His interviews consequently formed a significant part of the evidence against him. The fact the offender pleaded not guilty does not disentitle him to a discount for assistance. That is particularly so in circumstances where, at trial, he did not seek to recant anything he had previously said. There is some discomfort in allowing a discount on the basis of the offender’s engagement in interviews which he appeared to enjoy. His presentation, however, is to be understood as part of the grandiosity associated with his mental illness. Fundamentally, the motivation for the assistance given is not relevant. Courts are concerned with the pragmatic assessment of the value of the assistance. While there remains a discretion not to provide any discount in an appropriate case, despite assistance having been given, the Crown in this case accepted that, in the event that a determinate sentence was to be imposed, some, albeit modest, discount should be allowed. I propose to allow a discount of 5 percent for the assistance given by the offender, noting that such a discount has a greater impact when applied to a long sentence.

93. It was further submitted that a discount should be allowed for the offender’s facilitation of the course of justice in the conduct of the trial. I accept the trial was conducted efficiently. In particular, no issue was raised with respect to any element as to which the Crown bore the onus, the sole issues being the defence of mental health impairment, and, on count 1 the partial defence of substantial impairment. The manner in which the trial was conducted, as a practical matter largely followed from the offender’s interviews with police. That does not deny its utility. While I do not propose to provide a discrete discount on the basis of the offender’s conduct of the trial, it is a matter to which I have regard. [44]

    44. Tcpt, 22 November 2023, p 719

Totality

94. I must determine the sentence for each offence separately and then decide on the degree of cumulation between those sentences. The commission of a further offence, after arrest, and in this case while in custody, will ordinarily call for very substantial, if not total, cumulation. Mitigating that general approach in this case is the connection between the offences as a result of the ongoing impact of the offender’s mental condition, particularly when viewed in the context of the absence of serious offending from the time he was treated with a mood stabilising drug. I am also mindful that, in the case of very long sentences, as must necessarily be imposed here, the severity of the sentence increases at a rate that is not linear in proportion to the length of the sentence.

95. I propose to backdate the sentence to the day the offender entered custody. He is entitled to credit for the majority of that time. I am conscious that, in doing so the sentence imposed in the Local Court will be subsumed by the sentence I will impose. The total sentence I intend to impose is, however, sufficient to comprehend the criminality in all three offences.

Conclusion

96. I have regard to the various matters I have discussed in coming to my sentence. While I have found the offender to have been suffering from a mental impairment at the time of the offences which impacts on the sentencing exercise in the manner I have discussed, the objective gravity of each offence must be reflected in the sentences. All the purposes of sentencing must be considered including denunciation, punishment, retribution, accountability, deterrence, and community protection. The promotion of rehabilitation is not altogether forgotten but it does not attract significant weight.

97. The sentence for count 2, being the shorter sentence should commence first. For the offence of wound with intent to murder, but for the discount for assistance I would have imposed a sentence of 15 years. Applying a discount of 5 percent results in a head sentence of 14 years and 3 months. That sentence should commence on the day the offender entered custody. I would set a non-parole period of 10 years and 8 months which is approximately three-quarters of the total term.

98. With respect to the offence of murder, but for the discount for assistance I would have imposed a sentence of 35 years. Applying a discount of 5 percent results in a sentence of 33 years and 3 months. The non-parole period of 10 years and 8 months to be imposed on count 2 represents the maximum available cumulation. Having regard to the principle of totality, I commence the sentence for murder 5 years and 9 months into the sentence to be imposed on count 2. This results in a total sentence of 39 years. I set the non-parole for the murder sentence so as to arrive at a total non-parole period of 26 years. I find there are special circumstances and have adjusted that non-parole period to allow for cumulation and made a further reduction to allow for a longer period of supervision having regard to the offender’s need for psychiatric treatment. That adjustment is limited having regard to the need to ensure the non-parole period properly reflects all the purposes of sentencing.

Sentence and orders

99. I make the following orders:

1. Kevin James Pettiford, for wounding with intent to murder Nathan Mellows you are convicted.

2. For the offence of wounding with intent to murder, you are sentenced to imprisonment for a term of 14 years and 3 months, commencing on 26 November 2019. I set a non-parole period of 10 years and 8 months commencing on that date and expiring on 25 July 2030. The balance of term is 3 years and 7 months and is due to expire on 25 February 2034.

3. Kevin James Pettiford for the murder of Andrew Whyte Murray you are convicted.

4. For the offence of murder, you are sentenced to imprisonment for a term of 33 years and 3 months commencing on 26 August 2025. I set a non-parole period of 20 years and 3 months commencing on that date and expiring on 25 November 2045.  The balance of term of 13 years is due to expire on 25 November 2058.

5. The total effective term is one of 39 years comprising a non-parole period of 26 years and a balance of term of 13 years. The earliest date on which you will be eligible to be released on parole is 25 November 2045.

6. Pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), I advise you of the existence of that Act and the fact that it applies to you and to these offences. I direct your legal team to explain the significance of this fact to you.

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Endnotes

Decision last updated: 27 March 2024