R v Russell (No 3)

[2018] NSWSC 1673

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Russell (No 3) [2018] NSWSC 1673

Hearing dates:

12 – 16, 19 – 23, 26 – 28 March 2018, 19 October 2018

Date of orders:

02 November 2018

Decision date:

02 November 2018

Jurisdiction:

Common Law - Criminal

Before:

Rothman J

Decision:

(1) Conviction recorded;

 

(2) Special circumstances found;

 

(3) Sentence imposed of a non-parole period of 14 years’ imprisonment, commencing 8 January 2016 and concluding 7 January 2030, with a balance of term of a further 10 years, concluding 7 January 2040;

 (4) First eligible for parole on 8 January 2030.

Catchwords:

CRIMINAL LAW – sentence – murder – plea to manslaughter – convicted or murder – findings of non-planned – offender moved in and out of rationality – one wound, little force, intention to injure not kill – objectively below mid-range – strong subjective circumstances - Fernando/Bugmy issues – effect of s 21A(5AA) Crimes (Sentencing Procedure) Act – Sentence imposed.

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A, s 21A.
Crimes Act 1900 (NSW), Pt 11A
Crimes and Other Legislation Amendment (Assault And Intoxication) Act 2014 No 2 (NSW)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Cases Cited:

BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Coco v R (1994) 179 CLR 427; [1994] HCA 15
Electrolux Home Products Pty Ltd v The Australian Workers’ Union (2004) 221 CLR 309; [2004] HCA 40
Kennedy v R [2010] NSWCCA 260
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2
R v Coleman (1990) 19 NSWLR 467; (1990) 47 A Crim R 306
R v Fernando (1992) 76 A Crim R 58
Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14

Texts Cited:

New South Wales, Parliamentary Debates, Legislative Assembly, January 30 2014, 26621 (Barry O'Farrell, Premier and Minister for Western Sydney).

Category:

Sentence

Parties:

Regina (Crown)
Kevin James Russell (Offender)

Representation:

Counsel:
W Creasy SC (Crown)
A Webb (Offender)

  Solicitors:
Director of Public Prosecutions (NSW) (Crown)
Maguire & McInerney (Offender)

File Number(s):

2016/7801

Publication restriction:

Nil.

Remarks on sentence

1. HIS HONOUR: The Court must impose a sentence on Kevin James Russell, who a jury found to have murdered Alan Dempsey on 8 January 2016 in Wollongong. The offender, Mr Russell, pleaded not guilty to the murder of Mr Dempsey, the deceased, but guilty of manslaughter. The only issue at trial was whether the offender formed an intention to kill or to cause grievous bodily harm, when he stabbed the deceased.

2. Ordinarily, in the infliction of a stab wound an inference may be available that the person who inflicted such a wound intended to cause really serious injury, which is the meaning of the term “grievous bodily harm” and which, as an intention, is sufficient to prove the requisite intention for murder. However, this case was complicated by the physical state of the offender, in that he was so drunk that it was a real possibility that the formation of such an intention may have been extremely difficult such that there was a question as to whether in fact it occurred.

Facts

3. A single stab wound caused the fatal injury to the deceased. It was inflicted to the left-hand side of the back, pierced the left side pneumothorax and caused an incision to the upper portion of the lower lobe of the left lung and a small cut to the aorta. The wound was caused by a knife.

4. The knife was not in the possession of the offender prior to his arrival at the deceased’s home, but was, it seems, lying on the coffee table in the lounge room and deposited in the kitchen sink by the offender, or some other person, after the event.

5. The depth of the wound was approximately 12 cm and does not seem to have been a depth as long as the blade of the knife. The expert evidence was, that in order to cause the wound, the offender would not have been required to use great force, and the injury could have been caused with almost no force.

6. The injury could not have been deliberately intended to target the lung and the aorta, because the offender did not have any medical training. The nature of the injury is such that the deceased would have died rapidly and inevitably, regardless of the level and speed of medical intervention.

7. It is necessary to recount some facts that occurred earlier in the day. The offender was, at the time of the offence, homeless. He is an alcoholic who also consumes illegal drugs. The offender, was at the deceased’s unit either as a part of his usual drifting through acquaintances he knew in the community, or in order to obtain drugs.

8. The deceased, from time-to-time, supplied drugs to persons in the community and consumed drugs himself. On this occasion, there was a gathering in the deceased’s unit in which drugs were consumed by some of those in attendance. One of the persons, Darren Holly, left at some point in the night in order to acquire more drugs following the provision of money to him, from others in the unit. Those persons included the offender.

9. The offender gave an amount to the deceased, which money the deceased passed on to Mr Holly. In the meantime (and also prior to the arrival of the offender), the deceased and his friend Malcolm Roberts worked on the speakers to a sound system.

10. On the evidence before the Court, being evidence of persons who had from time-to-time seen the offender drunk, the offender, on the day of the murder, was more drunk than he had ever been.

11. One witness, Martin Hardisty described him as looking very intoxicated. Mr Hardisty had seen the offender in the deceased’s unit, shortly before the stabbing. Otherwise, the offender was described by another witness as “paralytic” and as “staggering around and incoherent”.

12. The offender had been “couch surfing” and had been at the residences of other occupants of the unit block, in which the deceased lived. Each of them described the offender in the same way.

13. One of them, in particular, Ms Che Piper, allowed the offender into her and her partner’s residence and described the offender as “heavily drunk”. According to Ms Piper, he could “barely stand up and could barely string a sentence together”; he was rambling nonsense and she could not understand him; he was too drunk to stand in order to leave the premises; and she and her partner had to help him up and down the stairs outside. Ms Piper had seen the offender drunk many times but, on her evidence, that day was the drunkest she had ever seen him.

14. Richard Dutton, a person who did not know the offender or the deceased personally and who was brought to the unit by an associate of the deceased through a series of events which are not relevant for these purposes, described the course of events, which occurred in the deceased’s unit during his presence there, before and after the stabbing. Mr Dutton was not present when the stabbing occurred, as he had gone outside to look for the return of Mr Holly.

15. Mr Dutton described a delay in the return of Mr Holly, who as mentioned, went to procure drugs. During the course of that delay the offender said words to the effect: “I want me fucking money back or some cunt’s going to get fucking hurt”. That statement was made not long after the deceased had told the offender: “Get out of here, I’ve had enough of you, you’re disrespecting me”, to which the offender replied: “Give me my money and I’ll go”. To that suggestion the deceased pulled out his wallet, opened it up and showed him that it was empty, saying: “look I got no money in my wallet”.

16. Mr Dutton gave evidence to the effect that during this time he feared that there would be an injury. Generally he was fearful that the deceased and Mr Roberts would injure themselves with the power tools that they were utilising for the insertion of a tweeter into the speaker box, because of their intoxication with either alcohol or drugs, probably the latter.

17. Nevertheless, there was aggressive banter between the offender and the deceased and Mr Roberts. On the evidence before the Court, it seemed that all three of them were making comments that reflected their states of inebriation.

18. Mr Dutton, whose evidence I prefer, made it clear that there was no real “argument”. It may be, from some evidence, that on first arriving at the deceased’s unit, the offender did not recognise the deceased, even though it was the offender who knew, precisely, where the deceased lived and had known him for some years. The discussion between them was “back and forward” which Mr Dutton described as having started off “jovial, and it got a bit more nastier [sic]”.

19. Mr Dutton was trying to swap some clothes in his possession for drugs or money. Mr Dutton gives evidence of the full extent of the request for the offender to leave. Essentially, Mr Dutton agreed that “over time it developed to the stage where it got more pointed, and Algi[a reference to the deceased] was responding with things like: “I don’t have your money Kevin. You can fucking get out. Have some respect”; “you’re in our house. You’re in my house with this bloke I don’t know. I don’t have your fucking money. You didn’t do the deal with me. And you wait. Don’t talk to me like that, and don’t disrespect me. I don’t have your fucking money”.

20. The offender raised the subject of his money and the deceased’s possession of it a number of times. But the conversation “waxed and waned”. The exchange “got pushier, and then it would all calm down”, but, according to Mr Dutton, the debate wasn’t always about coming back with the money.

21. Mr Dutton described the offender’s state as reflecting an inability to control himself and that there were “no normal people [there] to … try to fix it”.

22. Sometime during the exchange, the offender picked up the knife from the coffee table. The knife had been placed on the coffee table, I find, in order to assist with the work that was being performed by the deceased and Mr Roberts in relation to the speaker box or for them to process or to use certain drugs.

23. The offender sat there with the knife in his hand for some period of time. No one in the room took what the offender was saying seriously and some of that which the offender was saying was unintelligible.

24. Neither Mr Roberts nor the deceased reacted to the comments of the offender, even after the offender took hold of the knife. Each of them treated that which the offender was saying as a joke and were ignoring him, mostly because of his extremely intoxicated state.

25. Mr Dutton described the manner in which the offender was holding the knife and the way in which the offender tried to get to his feet from the lounge. He demonstrated those in Court. It is plain from those demonstrations that the accused was extremely drunk.

26. It seems, while Mr Dutton was absent from the room, and accepting, in this regard, the evidence of Mr Roberts, that the offender rose to his feet and said words to the effect of “I’ve had enough of this” and stabbed the deceased. The deceased had his back turned to the offender when the injury was inflicted. Mr Roberts’ demonstration of the motion to stab is consistent with the medical evidence as to the location, positioning and alignment of the injury.

Intoxication

27. Pursuant to the terms of s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW), self-induced intoxication is not a mitigating factor in the determination of an appropriate sentence to be imposed upon an offender. The terms of s 21A(5AA) of the Crimes (Sentencing Procedure) Act are as follows:

“Special rule for self-induced intoxication

(5AA)    In determining the appropriate sentence for an offence, the self-induced intoxication of the offender at the time the offence was committed is not to be taken into account as a mitigating factor.”

28. In Supplementary Submissions, the Crown submits, correctly, that the foregoing provision abolished the common law approach to intoxication. However, the Crown also submits that it abolished the approach to intoxication taken in R v Fernando (1992) 76 A Crim R 58; see also Kennedy v R [2010] NSWCCA 260.

29. In Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, the High Court confirmed at [38] the approach to an environment of alcohol and abuse in the following terms:

“[38]   The propositions stated in Fernando are largely directed to the significance of the circumstance that the offender was intoxicated at the time of the offence. As Wood J explained, drunkenness does not usually operate by way of excuse or to mitigate an offender’s conduct. However, his Honour recognised that there are Aboriginal communities in which alcohol abuse and alcohol-related violence go hand in hand. His Honour considered that where an offender’s abuse of alcohol is a reflection of the environment in which he or she was raised it should be taken into account as a mitigating factor. To do so, he said, is to acknowledge the endemic presence of alcohol in Aboriginal communities and:

‘the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects.’” [Footnotes omitted.]

30. The submission that s 21A(5AA) of the Crimes (Sentencing Procedure) Act has effect despite the previous common law is drawn from the provisions of s 21A(5B) of the Crimes (Sentencing Procedure) Act. The legislature has so expressed it.

31. Nevertheless, the proposition that the legislature has, by the insertion of s 21A(5AA) of the Crimes (Sentencing Procedure) Act, overturned the principles in Bugmy, supra, and Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38, which are of long-standing, needs to be examined more carefully. There is a principle of construction, honoured sometimes in the breach rather than in the observance, that “where a statute takes away or interferes with common law rights, then it should be given, if possible, a narrower interpretation”: Electrolux Home Products Pty Ltd v The Australian Workers’ Union (2004) 221 CLR 309; [2004] HCA 40 at [19] and Coco v R (1994) 179 CLR 427 at 437; [1994] HCA 15; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 492 [30]; [2003] HCA 2. In Electrolux, Gleeson CJ said:

“[19]   Reliance was placed in argument upon what was said to be a general principle of construction that, where a statute takes away or interferes with common law rights, then it should be given, if possible, a narrow interpretation. The generality of that assertion of principle requires some qualification. It is true that courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language. It is also true that there is a presumption, relevant for example to the construction of privative clauses, that the legislature does not intend to deprive the citizen of access to the courts, other than to the extent expressly stated or necessarily to be implied. However, as McHugh J pointed out in Gifford v Strang Patrick Stevedoring Pty Ltd modern legislatures regularly enact laws that take away or modify common law rights. The assistance to be gained from a presumption will vary with the context in which it is applied. For example, in George Wimpey & Co Ltd v British Overseas Airways Corporation, Lord Reid said that in a case where the language of a statute is capable of applying to a situation that was unforeseen, and the arguments are fairly evenly balanced, ‘it is ... right to hold that ... that interpretation should be chosen which involves the least alteration of the existing law’. That was a highly qualified statement and, if it reflects a presumption, then the presumption is weak and operates only in limited circumstances.” [Footnotes omitted.]

32. With the enactment of s 21A(5AA) of the Crimes (Sentencing Procedure) Act, the legislature expressly provided that it had effect despite any rule of law to the contrary. However, the mischief to which the legislature was then directing its attention was the issue associated with one punch manslaughter charges and the promulgation of s 21A(5AA) and s 21A(5B) of the Crimes (Sentencing Procedure) Act was promulgated as part of the Crimes and Other Legislation Amendment (Assault And Intoxication) Act 2014 No 2 (NSW).

33. The Second Reading Speech of the then Premier made clear that the purpose of the promulgation of the suite of amendments was:

“to make our streets safer by introducing new measures to tackle drug-and-alcohol-related violence. Recent months have seen a number of serious violent alcohol-and- drug-fuelled assaults in the Sydney central business district [CBD] and elsewhere that shocked the community across the State and, indeed, across the nation. The New South Wales Government has heard the community’s call for action. We are committed to continuing to address drug-and-alcohol-fuelled attacks on our streets and the increase in violence used in those attacks.”

34. The key to understanding the implication of s 21A(5AA) is in the use of the term “self-induced intoxication”. That term is defined in s 21A(6) by reference to the definition in Pt 11A of the Crimes Act 1900 (NSW), which, in s 428A, defines “self-induced intoxication” to mean intoxication by any drug or alcohol except intoxication that “is involuntary”.

35. As can be seen from the provisions of Pt 11A of the Crimes Act, legislation in pari materia with the Crimes (Sentencing Procedure) Act, self-induced intoxication cannot be used, on conviction, to defeat the issue of voluntariness in the commission of the crime, but the intoxication must be “self-induced”, namely it must be voluntary. Further, in the case of murder (and as was explained to the Jury during the course of the trial), intoxication, whether or not self-induced, may deprive an offender of the necessary intent for murder and, if that were the case, the legislature has promulgated, understandably, that, in the case of self-induced intoxication, the proper verdict would be manslaughter.

36. Here, where the offender first consumed alcohol, in relatively large quantities, at the age of five, well prior to the age of criminal responsibility or an age of rational decision-making, and was, probably by the time of criminal responsibility and certainly by the time of majority, an alcoholic or an addict in the consumption of alcohol, the notion of “voluntary” consumption of alcohol takes on a wholly different complexion.

37. More importantly, when dealing with the Bugmy factors, one is not making allowance or mitigating for “intoxication”. The factors relate to a deprived environment of which alcohol forms part. It is the moral culpability associated with that environment for which allowance is made; not intoxication, and the state of inebriation of the offender at the precise time of the commission is not the most relevant aspect of that issue.

38. It is probably unnecessary to resolve finally the foregoing issue, about which, no doubt, there may be different views. The reason it is unnecessary to determine the issue finally is that, as the Crown points out in its most helpful Supplementary Submissions, whether or not one can take into account intoxication as a mitigating factor, when it is a reflection of the environment in which the offender was raised “it does not impact upon the relevance of the offender’s deprived background” as a factor in sentencing. Nor, according to the Crown Submission, does the intoxication impact “upon the common law authority which held that an offender’s intoxication at the time of the offence can be a relevant factor in …

1. determining the degree of deliberation involved in the offender’s conduct: R v Coleman (1990) 19 NSWLR 467; (1990) 47 A Crim R 306 at 327;

1. as a factor of aggravation because of the recklessness with which the offender became intoxicated;

2. as a neutral factor explaining conduct but not aggravating or mitigating it: BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159 at [79].”

39. In the current circumstances, it would be impossible, given the expert evidence, to deal with culpability and the degree of deliberation in the offender’s conduct, without considering the effect of alcohol on the offender.

Subjective Circumstances

40. The offender, Mr Russell, is a South Coast Aboriginal man and was 54 years of age at the time of the offence. The offence itself has already been described. Death was occasioned by a single knife wound to the left hand side of the back. The small wound to the aorta inevitably led to death, but, as earlier stated, short of medical expertise, it would have been impossible to intend the precise mechanism of death.

41. Some of the subjective circumstances have already been recited. The offender was homeless at the time of the offence and was known to a significant number of the residents of the large housing commission complex in which the deceased’s unit was situated. He used the unit block, and other areas, to “couch-surf” or to bed down.

42. The offender was, at the time of the offence, a long-term drug and alcohol abuser. I have already described the offender as an alcoholic and, it seems, he was addicted to other drugs including amphetamines and cannabis.

43. On the day of the offending, Mr Russell commenced drinking very early in the morning, finishing a 5L cask of wine and purchasing another, which he continued to drink during the course of the day.

44. During the day, he spent some time on the beach and at various units. As already described, at the time of the offence, or shortly before, he was described as incoherent; drunker than he had ever been; unable to complete a sentence; unable to rise from the couch; and unable to walk properly.

45. He eventually came to the premises of the deceased and, as earlier described, ultimately stabbed him. The offence was neither planned nor premeditated. It was a wholly spontaneous act, seemingly occasioned by the failure of the deceased to obtain, in a timely manner, drugs, money for which the offender had handed to the deceased who handed the money to another person.

46. The deceased was a drug dealer who had a reputation as such. The offender remained in the premises for a short time after the stabbing and, it seems, seemed to stop consuming alcohol then or shortly after. By that stage, the accused had consumed about 7½ L of white wine.

47. Police located the offender relatively quickly and the offender made no attempt to hide the fact that he was responsible for the stabbing. A number of Police witnesses gave evidence of admissions which were spoken by the offender during the course of his arrest and in between drunken mumbling.

48. When the offender was taken to the Police Station, he was subjected to a number of forensic procedures which were conducted despite the offender’s intoxication and despite his persistent speaking and yelling over the officer who was attempting to give him the requisite warnings. The procedures were, nevertheless, implemented because the Police were of the view that it was necessary urgently to preserve evidence, which was on the offender’s hands and also, because the offender was an Aboriginal person in custody and was cuffed with his hands to the rear, a most uncomfortable and distressing posture.

49. During the course of the procedures, which were video recorded and are before the Court, the offender continued to both mumble and yell. At one point the offender said, said "Can't you do a decent thing? I know what I did. Can you take these off?" which was a reference to the handcuffs. When questioned about what he meant, the offender said "Yeah, I stabbed him, I stabbed him. I stabbed him. I know what I did."

50. Following the forensic procedures, the Custody Manager came to the view that the accused was still so intoxicated that a “time out” was required to be placed on the investigation to allow the accused to become more sober and because he could not and would not understand the warnings that were necessary for vulnerable persons in custody, a class which included Mr Russell. The offender proceeded to fall asleep in the Police Station dock.

51. Some hours later the offender was woken, told he was under arrest for murder, and was not given full warnings in accordance with the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). The offender, up until that point, did not know that the deceased had died.

52. The Court has before it psychological reports relating to the offender. At the time of the offence he showed no insight into his alcohol and drug abuse and considered he was capable of controlling it, even though he consumed alcohol every day and drugs most days: Report of Dr Anna Robilliard, 23 December 2016.

53. Even by the time of the Draft Report of 8 May 2017, the Psychologist, Anne Lucas of Duffy Robilliard, described the offender as continuing “to exhibit low insight into his alcohol misuse problem. Despite being able to enumerate multiple deficits in activities of daily living associated with his alcohol use, he maintained that his alcohol use has always been under his control. He provided history of binge drinking and multiple withdrawal[s] which some research has suggested has poorer outcomes for cognitive performance.”

54. In the earlier Report dated 23 December 2016, Anna Robilliard of Duffy Robilliard noted:

“As noted earlier in this report, he was in denial about the seriousness of his substance misuse. This was also reflected in the sub-significant scores he achieved on measures of alcohol and drug use on the personality test administered. When he was interviewed for the preparation of this report his attitude was intransigent and he still maintained that he was not an alcoholic; rather that he was someone who ‘liked to drink’ and had been on a ’50 year binge’.”

55. A final Report of Anne Lucas, dated 28 June 2018, referred to significant cognitive deficits, seemingly associated with excessive, chronic alcohol consumption.

56. The offender’s family history is reported in both the initial Report of 23 December 2016 by Anna Robilliard and in the Draft Report (which is included in the final report) by Anne Lucas. The offender’s formative years were spent in the Dapto area; his father is of Aboriginal descent and his mob came from “out West” and some in the South Coast.

57. The offender’s mother identified as Caucasian, although there is some suggestions that she too is of Aboriginal descent. Despite his initial avoidance of issues, it is clear from the psychologists’ Reports that the family environment during the course of the offender’s youth and childhood was one of domestic violence, with his father being a heavy drinker and prone to violence against both his mother and the children, including the offender.

58. At about the age of seven or eight, the offender found his mother on an occasion where she had seemingly attempted suicide by cutting her wrists and was lying on the bathroom floor. It was the offender who summoned help.

59. The offender commenced drinking alcohol in family surroundings when he was about five years of age, yet has continued to claim he is not an alcoholic. The offender commenced smoking cannabis at the age of nine and commenced using amphetamines off and on from about the age of 28. For the two years prior to the stabbing of Mr Dempsey, the offender had used crystal meth on a daily basis.

60. The offender had also used heroin and abused drugs that might otherwise have been prescribed such as Serepax (oxazepam).

61. Further to the foregoing, Ms Robilliard also noted:

“Mr Russell said he did not recall any specific incidents occurring between himself and the victim that could account for his aggressive act, however his criminal history demonstrates prior assaultive behaviour. The combination of an aggressive predisposition and a diminished behavioural control due to substance toxicity, provided the context in which the client stabbed and killed his friend. Although he cannot recall what triggered his violent acting out, the profile Mr Russell produced on the personality test administered highlighted a prominent paranoid personality disordered constructed. As described in the Test Assessment section, people with prominent paranoid personality disorder which in this case was combined with a well entrenched depressive predisposition, have a distorted interpretation of life which applies in most arenas including interpersonal relationship dynamics. These individuals feel intrinsically disadvantaged and reactively resentful. They typically feel under threat of harm or injury which prompts defensive and aggressive behaviour aimed at self-protection.” The later reports, including the draft report, by Ms Lucas confirm the initial assessment of Ms Robilliard.

62. There can be little doubt that his family environment and his alcohol abuse have caused significant cognitive difficulties. He expressed remorse to Ms Lucas who reported in the following way:

“Mr Russell advised that he still is unable to recall the events surrounding the offence with any clarity. He continues to doubt that he would have intentionally ended the victim’s life. In saying this he expressed remorse regarding any behaviour he engaged in which resulted in Mr Dempsey’s death. He described Mr Dempsey as a friend and whilst conceding that they had a relationship where conflict had arisen in the past found it difficult to accept that he caused Mr Dempsey’s death.”

63. Ms Lucas makes clear that the cognitive dysfunction to which the Court has referred is most likely as a result of the alcohol abuse from an early age. Whatever the cause, those cognitive deficits “could affect Mr Russell’s ability to quickly and efficiently appraise situations, organise himself, make decisions, override habits and inhibition in a flexible and adaptive manner. The effects of alcohol or substance intoxication would be expected to compound any such impairment and if, as the evidence suggests, he was heavily intoxicated at the time of the offence, his judgement and consequence appreciation may have been more seriously impaired.”

64. Mr Russell, the offender, filed an Affidavit sworn 18 October 2018, in which he attests to the truth of the history and expressions of opinion given to the psychologists. He was not cross-examined to suggest otherwise or to suggest that he was not genuinely remorseful.

65. Further, during his youth and adolescence, Mr Russell’s mother continued to berate her son because he identified himself as Aboriginal. His family background, on the basis of the Affidavit and the material to psychologists, was, to say the least, dysfunctional. It was an environment of physical abuse and alcoholism, together with criticism, from his mother, for identifying as Aboriginal. Domestic violence and physical abuse were prevalent in the offender’s early childhood and he left home at the age of 15. He was diagnosed as an alcoholic and placed on an invalid pension at the age of 25.

66. The level of violence and alcohol abuse was not confined to Mr Russell’s nuclear family and a number of his close relatives died prematurely, some from suicide. His other male sibling is also an addict with a violent criminal history.

67. Mr Russell has three children, one daughter and two sons. It seems that the only stable period of his life was during the relationship from which the children derive.

68. His alcohol and drug addiction increased dramatically when the relationship broke down and Mr Russell lost contact with his children. Mr Russell has attempted suicide on four occasions, the first of them when he was approximately 14 or 15 years of age.

69. According to the Affidavit of Mr Russell, he had suffered significant discrimination during the course of his years on account of his Aboriginality. During his life he has been vilified, sometimes by people he knows, and often by strangers.

70. The blood tests performed on the offender, approximately nine hours after the commission of the offence, showed the presence of nordiazepam and the breakdown of cannabis, each of which were unlikely to have an effect on the offender at the time of the incident. It is difficult for the pharmacologists to determine that question with certainty, because it depends very much on the rate of breakdown of those drugs by Mr Russell.

71. As to alcohol, on being tested some nine hours after the incident, being the time he ceased to consume alcohol, he had an alcohol concentration of 0.174 per 100 mL. It is difficult for the pharmacology expert (Prof John Farrar) to predict with certainty the blood alcohol concentration at the time of the incident.

72. The statistical average rate of breakdown of alcohol in the system is 0.015 g per 100 mL per hour. However, heavy drinkers may break down alcohol at three or four times the statistical average.

73. Prof Farrar discounted the possibility of a greater rate of breakdown because, at either three or four times the normal rate, the level of alcohol in Mr Russell’s blood at the time of the stabbing would have been fatal.

74. Even on the ordinary rate of breakdown (0.015% per hour), the likely blood alcohol content at the time of the incident was between 0.3% and 0.38%. According to Prof Farrar, this is still within what would be referred to as the fatal range of alcohol concentration. One of the effects of Mr Russell’s arrest and accommodation in the cells (with a blanket) is that it likely prevented his death.

75. Prof Farrar explained that “tolerance” is not a factor in the fatal range and said that irrespective of the degree of tolerance developed to the effects of alcohol at the time of the stabbing, Mr Russell’s cognitive and decision-making capacity would have been significantly and severely impaired by alcohol consumed by him. Initially Mr Russell probably exhibited an increased propensity towards aggression and violence as these are “domestically associated with high blood alcohol concentration”. Prof Farrar said that “epidemiologically [the way alcohol affects people in the population] … the extent of impairment would have been very extensive” at 0.3% level, being the lowest estimated possible level of alcohol (see above).

He said:

“Q. You, I think, would say, would you not, that the extent of the impairment … of the decision making capacity; you would say as to the extent of that impairment, that it was very extensive?

A. At that point three per cent, yes, it would be. … Mr Russell would not have been at all well-aware of his environment. His ability to understand his environment, including the people he was with, interact with them socially shall I say, would have been very significantly impaired by the alcohol if it were present at that blood alcohol concentration. So his ability then to make decisions which are complex, social interaction is a complex process and to make decisions based upon that social interaction, with the people with whom he was with [sic], would have been very significantly impaired indeed”.

76. Some of the evidence of independent witnesses suggests some level of “rationality” but, particularly the lay opinion expressed by Mr Dutton, was that the offender hadn’t “the … mental capacity to consider the consequences of his actions.”

77. Given the uncontested evidence of Prof Farrar, Pharmacologist, and the other evidence that is before the Court, it seems the basis upon which the Jury found the offender guilty of murder (as distinct from manslaughter) was that the offender moved in and out of the capacity to form an intent and, at the precise time of the stabbing, had that intent. I am bound by that finding of intent.

78. Nevertheless, the state of intoxication of the offender is a matter that tells significantly on the culpability of the offender and his background brings into play the principles embodied in the issues that relate to an environment of abuse and social exclusion which have affected Mr Russell’s executive decision-making and render him far less a person who stands as a good example for the purposes of general deterrence.

Principles of Sentencing

79. To those unfamiliar with the process of sentencing, some aspects are difficult to understand and need explanation. Even in relation to a charge as serious as murder, the Court is required to assess the objective seriousness of the particular offence, within the range of conduct covered by the offence. Thus, it is necessary to assess the conduct of Mr Russell to determine where, objectively, in the range of seriousness of murders generally, this offence fits.

80. For the worst category of offences only, one may impose the maximum sentence fixed by Parliament. Parliament has fixed a maximum sentence of life imprisonment for murder and has set a standard non-parole period of 20 years for the hypothetical mid-range of seriousness. The sentence to be fixed involves a consideration of both the objective circumstances and the subjective aspects relating to the offender. However, the question of what kind of offence is a “worst case” is not determined by imagining conduct that could be worse.

81. The purposes of sentencing are prescribed by s 3A of the Crimes (Sentencing Procedure) Act, which, in turn, reflects common law principles. Those objectives include: the protection of society; deterrence of the offender and of others who might be tempted to offend; retribution; and reform. Those objectives overlap and may often, if not always, point in different directions. None can be considered in isolation and each is a guidepost to the appropriate sentence to be imposed.

82. The process of sentencing is neither logical nor mathematical and is often referred to as a process of “intuitive synthesis”, which requires the assessment and weighing of each of the purposes in order to achieve an appropriate sentence that fulfils the overall objective undertaken in the sentencing process: Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14.

83. The provisions of s 21A of the Crimes (Sentencing Procedure) Act also prescribe matters that, if relevant and not otherwise taken into account in the determination of the appropriate sentence, are either aggravating or mitigating factors in the severity of the sentence to be imposed. Relevantly for present purposes, the relevant factors in s 21A (apart from the provisions of s 21A(5AA) to which reference has already been made) are that the offence involved the use of a weapon (a relatively common feature of murders); and the offence occurred in the victim’s own home.

Conclusion

84. As already stated, the Crown case did not include that the offender possessed an intention to kill the deceased. Rather, for the murder charge to be proved, it depended upon the Jury finding an intention to cause grievous bodily harm (or really serious injury).

85. The fatal wound was caused by a single stab wound that did not require significant force. There is no cause to take the view that the offence, even in so far as it related to the causing of grievous bodily harm, was occasioned by any premeditation or an attendance at the victim’s home for the purpose of inflicting injury.

86. On the contrary, the attendance at the victim’s home, with others, was for the purpose of either couch surfing or consuming and/or purchasing drugs. In turn, this may qualify the aggravating effect of the offence having occurred in the victim’s home. The deceased’s home was also a place of his business.

87. Otherwise, the aggravating features are elements of the offence itself. Of course, the level of injury, emotional harm, loss and damage caused by the offence was substantial, not only to the deceased but also, as evidenced by the Victim Impact Statement, on his family.

88. All murders are 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. Both the maximum sentence and the non-parole period are guide posts in the fixing of a sentence.

84. Ultimately, a murder denies to family and loved ones the continued company of the victim. The loss of a parent, friend or relative in an untimely manner is immeasurable. The loss of such a person in circumstances of a violent offence is even more tragic and damaging. However, nothing that the Court can do is capable of undoing that loss.

85. In this case, there was an intention to inflict grievous bodily harm which in the circumstances of this matter, renders it a less serious offence than if there were an intention to kill. Further, very little force was required for the fatal injury, disclosing that the basis to infer an intention to injure was limited to the use of the knife itself.

86. The offence was not part of a planned organised criminal activity; the offender was not fully aware of the consequences of his actions at the time because of his disability associated with drug and alcohol dependence; and the offender has given evidence acknowledging injury caused by his actions and his acceptance of responsibility for them.

87. Further, the manner in which the offender conducted his trial assisted significantly in the administration of justice. Ultimately, the only aspect that was in issue in the trial was the capacity of the offender to form the requisite intent and/or whether such intent was formed. The offender pleaded guilty to manslaughter and a great deal of the evidence was adduced, by agreement, through one or other police officer. This also evidences a certain remorse for his conduct and relieves the family from needing to hear or to see much of the most disturbing parts of evidence that would otherwise have been adduced.

88. The Crown submits that the objective seriousness of the offence is at mid-range or slightly below mid-range, but only just. There was no intention to kill and the intention to cause really serious injury, together with the lack of deliberate and premeditated conduct, and the other factors to which reference has been made, in my view, place the objective seriousness below mid-range.

89. The offender was severely affected in the formation of his intent, which when coupled with his cognitive dysfunction, makes his decision-making almost non-existent. He does not seem to be a person who is a good example for general deterrence. Nevertheless, general deterrence is still important.

90. More important is the issue of specific deterrence. This, however, is ameliorated by an understanding of the environment that pertained to his upbringing and the effect of his social exclusion. If these matters are to be addressed to prevent, or to lower, the risk of recidivism, appropriate, culturally-sensitive programs need to be provided in prison and beyond.

91. The offender’s alcohol and drug dependence has been dealt with, or is being dealt with, in prison. But keeping him off drugs and alcohol after release will require a very lengthy and closely-monitored period of supervision. Further, the need for the offender to mix in socially-inclusive, appropriate groups in society is a reason to augment, even further, the period of supervision after release. I find special circumstances, requiring a much lower than prescribed non-parole period. Whether the offender is granted parole will depend upon his efforts at rehabilitation in prison and the safety of the community.

92. The offender is not entitled to any discount for a plea, nor for assistance to authorities. His remorse is genuine and, subject to the provision of appropriate programmes and post-release supervision, his chances of rehabilitation good.

93. The offender has been in prison since 8 January 2016 solely on account of this offence and the sentence will commence on that date. A copy of these Remarks will be forwarded to the Department of Corrective Services. 

Conviction and Sentence

99. Mr Russell, please rise.

100. Kevin James Russell, you are convicted of murder in that, on 8 January 2016, in Wollongong in the State of NSW, you did murder Alan Dempsey.

101. I find special circumstances.

102. I sentence you to imprisonment for a non-parole period of 14 years’ imprisonment, commencing 8 January 2016 and concluding 7 January 2030, with a balance of term of 10 years, concluding 7 January 2040.

103. You are first eligible for parole on 8 January 2030.

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Amendments

02 November 2018 - Typographical amendments

Decision last updated: 02 November 2018