R v Shee, Gregory John
[2012] NSWSC 1422
•23 November 2012
Supreme Court
New South Wales
Medium Neutral Citation: R v SHEE, Gregory John [2012] NSWSC 1422 Hearing dates: 2 November 2012 Decision date: 23 November 2012 Jurisdiction: Common Law - Criminal Before: Beech-Jones J Decision: The offender is convicted and sentenced to a term of imprisonment. The Court sets a non-parole period of fifteen years commencing on 7 July 2010 and ending on 6 July 2025 with an additional term of five years commencing on 7 July 2025 and ending on 6 July 2030.
Catchwords: CRIME - sentencing following verdict - murder - self defence, intoxication and provocation rejected by jury - antecedents - mainly drug-related property offences and domestic violence offences - use of weapon - mild intellectual disability - low to medium risk of re-offending - absence of remorse. Legislation Cited: Crimes Act 1900 - s 19A, s 23(2), Pt 11A
Crimes (Sentencing Procedure) Act 1999 -s 30A, s 54A, s 61(1)Cases Cited: - Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- MAH v R [2006] NSWCCA 226
- Markarian v R [2005] HCA 25; 228 CLR 357
- Muldrock v R [2011] HCA 39; 244 CLR 120
- R v Bugmy [2011] NSWSC 357
- R v Isaacs (1997) 41 NSWLR 374
- R v Koloamatangi [2011] NSWCCA 288
- R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566
- R v Pilley (1991) 56 A Crim R 202
- R v Williams [2011] NSWSC 583
- Veen v R (No 2) [1988] HCA 14; 164 CLR 465Category: Sentence Parties: Crown (Prosecution)
Gregory Shee (Offender)Representation: Counsel:
T.W. Thorpe (Crown)
M.D. Austin (Offender)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Douglass & Ford Criminal Law (Offender)
File Number(s): 2010/227071
Judgment on sentence
On 28 May 2012 Gregory John Shee was arraigned in this Court on an indictment that charged that he did on 8 July 2010 at Macquarie Fields in the State of New South Wales murder Hoang Tang. Mr Shee pleaded not guilty.
On 14 June 2012, a jury returned a verdict of guilty to the charge of murder.
The matter was initially listed for submissions on sentence on 6 August 2012 but was adjourned until 3 November 2012 to enable access to certain medical records to be arranged.
The maximum penalty for the offence of murder is life imprisonment (s 19A Crimes Act 1900). Subsection 61(1) of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Act") requires that I impose a life sentence if I am satisfied that the level of culpability in the commission of the offence was so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence. I address the circumstances of the offence and the various factors relevant to the sentencing of the offender below. It suffices to state at the outset that I am not satisfied that a life sentence is warranted. The Crown did not submit otherwise.
Pursuant to s 54A of the Sentencing Act a standard non-parole period of twenty years is prescribed for the offence of murder. In sentencing the offender, I am required to be mindful of the two legislative guideposts constituted by the maximum sentence and the standard non-parole period (Muldrock v R [2011] HCA 39; 244 CLR 120 at [27]). However, the Sentencing Act does not require me to undertake that exercise by treating the non-parole period as the necessary starting point or the only important end point in fixing the sentence (Muldrock at [17]). Nor am I required to commence by asking whether there are reasons for not imposing the standard non-parole period in this case (Muldrock at [25]). Instead, I am required to bear in mind those two legislative guideposts. I am required to identify all the factors relevant to the sentence, discuss their significance and then assess the appropriate sentence (Muldrock at [26], citing McHugh J in Markarian v R [2005] HCA 25; 228 CLR 357 at [51]).
Background Facts and Evidence
The following summary is taken from the evidence led by the Crown at the trial. To the extent that there was any dispute concerning the material, I will identify it and make my assessment having regard to the jury's verdict. Before I make a finding adverse to the offender, I must be satisfied of that matter beyond reasonable doubt (R v Isaacs (1997) 41 NSWLR 374). Any findings in his favour may be proved on the balance of probabilities (R v Pilley (1991) 56 A Crim R 202).
At the time of his death, Hoang Tang, and Ms Toni McCaw were in a de facto relationship. They had three children together. One of their children had died in his infancy. Tuesday, 6 July 2010, was the sixth anniversary of that child's death.
The deceased, Ms McCaw and the offender were all receiving treatment for drug addiction. The offender lived in Macquarie Fields and had known the deceased and Ms McCaw for some years. He was friendly with both of them.
On the morning of 6 July 2010, the deceased, Ms McCaw and the offender met while taking public transport to different methadone clinics.
The offender went to Liverpool and received his dose of methadone. The deceased travelled to a pharmacy in Parramatta for his dose. Ms McCaw received her methadone from a pharmacy in Fairfield. She then purchased a six pack of bourbon and coke from a nearby bottle shop. She consumed some of the six pack at a park. She then travelled to Guildford and met the deceased at a pharmacy where they obtained prescriptions for Serepax and Valium. They travelled to a shopping centre in Fairfield where the deceased sold their prescriptions to another drug user. They both took some Serepax and Valium. They went to a liquor store where Ms McCaw bought some more pre-mixed bourbon and the deceased stole a bottle of bourbon from the liquor shop. By this time it was the middle of the afternoon.
Ms McCaw and the deceased went back to her home at Eucalyptus Drive, Macquarie Fields. They arrived late in the afternoon. They performed a Buddhist prayer ceremony for their deceased son. They talked about him. They drank some more bourbon and went upstairs.
Sometime after 7pm, the deceased began making comments to Ms McCaw about an ex-boyfriend. She became worried and asked him to leave. The deceased said to her "We're both going to die tonight". At 7.28pm she dialled 000. The deceased took the mobile telephone from Ms McCaw and she hit him on the arm with a spanner. She threatened to hit him again.
At this point the offender telephoned the deceased on his mobile phone. He answered it. Ms McCaw yelled out "I'm scared, come over". The deceased ended the call. Ms McCaw told him to leave as he was too drunk to stay.
Shortly afterwards, the offender knocked on the door of Ms McCaw's home. According to Ms McCaw, the offender "calmed the situation down and took the spanner off me". The offender told the deceased to come and stay at his place. They both left. They were seen leaving by a neighbour in a jocular mood.
At about 8pm on 6 July 2010 the police attended Ms McCaw's home to respond to the 000 call. One of the officers asked her if everything was alright and she said that it was and that she must have accidentally called 000.
As I have stated, the offender also lived in Macquarie Fields. His house was near a high school. At the trial a number of witnesses gave evidence of an altercation between two men just outside his house later that evening, although the times varied. The witnesses were clearly referring to the offender and the deceased. Two witnesses described the altercation as having occurred around 11.30pm. One described a fight in which one of them was dragging and punching the other and yelling "Where's my fucking money, where's my fucking money. I want my money now". She heard the victim "moaning". She saw the aggressor collect an "Otto bin" and attempt to put the deceased inside. Her friend also described the encounter in similar terms although her description of the altercation suggested more of a struggle than a one way beating.
Another witness, a Mr Matthew Gleeson, claimed that between 9.30 and 10.00pm, or possibly later, he drove into the street and witnessed a confrontation in which the offender was on the defensive and the deceased was in the ascendancy. I accept that Mr Gleeson witnessed an altercation between the offender and the deceased. However, for the reasons set out below, I am satisfied that the jury rejected so much of his evidence as suggested that the offender was defending himself.
As I will explain, these descriptions appear to be the culmination of a confrontation between the offender and the deceased that had started inside the offender's house and spilled outside.
At approximately 1.30am on 7 July 2010, Ms McCaw was woken by the offender. He told her that he had "done something, something bad happened". The offender said that "Wang's gone for a walk so I am going to find him". He told her to get some clothes. Ms McCaw collected some clothes for the deceased and accompanied the offender to his house.
They walked to the offender's house through the grounds of the high school. Unknown to Ms McCaw she passed nearby the deceased who was lying in a creek that ran through the school grounds. While they were walking the offender told her that the deceased had robbed him. When they arrived at the offender's house, she saw the deceased's clothes. She recalls the offender being angry and repeating that the deceased had robbed him and that he wanted his phone and money back. She recalled the offender saying that around $300.00 was missing and that he "wants his fucking money". Ms McCaw looked for the money and phone and found the latter in a pot plant on top of the toilet. She observed blood towards the top of the staircase in the offender's home. She began to cry. She recalled the offender stating "[t]hat is where I first hit him".
Ms MsCaw assured the offender that his items were still in the house and suggested they look for the deceased. They left and the offender took her to the creek, approximately 250 metres from his house. The deceased was naked, lying in the creek on his stomach. She touched him. He felt very cold but she could still hear him breathing.
Ms McCaw and the offender dressed the deceased. She could see that the deceased had a cut above his eyebrow, a lot of blood on his face and grazes on his feet. Ms McCaw asked the offender why the deceased was naked. The offender said he was "looking for his money, to make sure it wasn't between his butt cheeks".
They both dragged the deceased up an embankment. Ms McCaw called an ambulance. The offender ran to a nearby ambulance station. The transcript of the 000 call reveals her panic and distress. She did not tell the operator of the offender's involvement.
The police arrived at the scene prior to the ambulance. The offender was at the scene with a torch and led them to the deceased. Both he and Ms McCaw told them that the deceased had gone for a walk and that he and Ms McCaw went looking for him.
The deceased was taken to Liverpool Hospital. He had facial and skull fractures with brain injuries. He was suffering from hypothermia and had a number of cuts, abrasions and bruises. There were red marks on his throat. He was unconscious. He never regained consciousness. He died on 8 July 2010.
Around 6.40am on 7 July 2010 police attended Ms McCaw's home and spoke to her and the offender. Both Ms McCaw and the offender again told the police that they had gone looking for the deceased at the creek and did not know how he sustained the injuries. The offender denied that he had consumed any alcohol or drugs on the previous day other than his prescription medication.
The offender was taken to Macquarie Fields police station. He participated in two video recorded interviews. In the first interview he admitted attacking the deceased but claimed it occurred after the deceased had touched the offender on the leg and on his genitals. He said he had hit the deceased in the lounge room of the offender's home. The offender claimed that he had been the victim of sexual abuse as a child. The offender was unable to say how many times he hit the deceased, whether he used any weapon, or what part of his body he had hit. He said there was an "... explosion of anger". He also alleged that the deceased had stolen money from him that evening. He said he carried his body to the creek and left it there because he believed he had killed the deceased. He said he only realised that the deceased was still alive when he returned with Ms McCaw.
At the conclusion of this interview, the offender told them that he lied about the deceased touching him and said it was "not right for him to be known that way". The offender agreed to participate in a further interview ("the second interview").
In the second interview, the offender admitted that he had lied when he told the police that the deceased had touched him in a sexual way. He stated that after they returned to his place both he and the deceased went to sleep. He said he woke to discover the deceased had taken his money and his mobile telephone. He confronted the deceased and locked the door. He said he punched the deceased when he tried to force his way out the door. He said the deceased fell back onto the staircase. The offender stated that he believed he had killed him and so he carried him to the creek. The offender denied transporting him in the Otto bin and reiterated that he had only hit the deceased once.
Towards the end of his interview, the offender became increasingly unbalanced and abusive. He was then returned to the charge room area and was provided with a meal which he threw on the floor. The offender was then taken to the dock area where he proceeded to urinate on the floor, defecate and then smear his faeces on himself and the dock.
A forensic examination of the offender's home revealed a significant amount of blood on the staircase. The blood pattern was consistent with the deceased having been dragged down the staircase. There was blood on the wall adjacent to the staircase. A wooden handle was found in the kitchen. It had blood stains. DNA analysis revealed that it was the deceased's blood. There was an Otto bin near the house with blood stains on the outside and the wheels were muddy. There were track marks in the grass nearby.
The post-mortem examination revealed that the cause of death was multiple blunt force injuries, primarily to the head and neck. The deceased suffered a number of injuries and fractures to his skull. The forensic pathologist, Dr Matthew Orde, stated that they were caused by two and possibly more separate blows to his skull. Dr Orde also described the deceased as having "multiple surface injuries to the neck, primarily to the front and right side of the neck; the injuries to the left front aspect of the neck have a linear component", and raised the "possibility" of the application of a ligature (i.e. something around the neck). In his evidence he suggested it could have been a belt, but accepted that those marks could also have been the result of the deceased being transported in an Otto bin with the weight of the head outside the bin.
The deceased also had lots of minor abrasions and bruises all over his body. Dr Orde stated that in isolation some were fairly minor, but considered together they were widespread and quite extensive. He described many of these injuries as non-specific, but said some could have been caused by an implement such as the wooden handle. He also accepted that a number of the injuries to the body were consistent with the deceased having been dragged, including the bruising to the arm pit. Dr Orde accepted that it was conceivable that, if the deceased was dragged, this could have caused some of the bruising.
The offender gave evidence at his trial. Contrary to his statement to the police on the morning of 7 July 2010 the offender stated that he had consumed a significant amount of benzodiazepine drugs on 6 July 2010 which affected his memory. He recalled coming back to his house with the deceased after he intervened between the deceased and Ms McCaw on the evening of 6 July 2010. He recalled going to sleep and waking to find his money and telephone missing. He stated that he confronted the deceased at the top of the stairs. He recalled there was a fight but claimed that he could not recall anything further. This was said to be due to the effect of the drugs he consumed. In cross examination the Crown Prosecutor suggested that he was feigning a lack of memory.
Findings
At all stages of the trial, the Crown case was that the offender had killed the deceased by striking him with at least two blows with the piece of wood seized from the offender's kitchen. It contended that the savagery of the blows (which caused the fracturing to his skull) clearly indicated that they were administered with an intention to kill or at least inflict grievous bodily harm. The directions given to the jury reflected the Crown case. The jury were clearly satisfied accordingly.
The jury were instructed as to the obligation on the Crown to negative self defence. The possibility that the offender had acted in self defence arose out of the evidence of Mr Gleeson that I have referred to above (at [17]). I am satisfied that the jury rejected so much of his evidence as suggested that the offender was defending himself. To the extent that there is some doubt about the jury's assessment of his evidence, I record my rejection of this aspect of his evidence.
The jury were also instructed as to the obligation on the Crown to negative the possibility that the offender acted under provocation. Two forms of provocative conduct on the part of the deceased were put to the jury. The first was that the deceased made a sexual advance towards him. This was referred to in the first interview. As I have stated, the offender disavowed it after that first interview and did not reassert it in his evidence at the trial. I am satisfied that the jury accepted that no such conduct occurred.
The second form of provocative conduct put to the jury was that the deceased stole his mobile phone and some money. This contention was stated by the offender in his second interview and in his evidence. It was supported by Ms McCaw's evidence and some of the witnesses who overheard the fighting. It was the very explanation the Crown put forward as to how the offence occurred. I do not consider that the jury's verdict meant that it did not accept that the offender at least believed that his mobile phone and money were stolen by the deceased. To the contrary, I am satisfied that it occurred in that manner. Instead the jury's rejection of provocation on this basis followed from its satisfaction that either the offender did not lose his self control or that the ordinary person in his position would not have responded by being induced to inflict death or grievous bodily harm (s 23(2)(b) of the Crimes Act).
In relation to each of the issues concerning the offender's intention, self defence and provocation, the jury were instructed on the question of his self induced intoxication in a manner consistent with Part 11A of the Crimes Act. The form of intoxication put to the jury arose from the evidence of the offender at the trial in which he stated that he consumed a considerable amount of benzodiazepines on 7 July 2010. This evidence was inconsistent with what he told the police early on the morning of 6 July 2010. However the jury's verdict does not necessarily mean that it rejected his evidence that he consumed benzodiazepines on 6 July 2010. Instead I consider it more likely that they were satisfied to the requisite standard that his consumption of benzodiazepines did not preclude him from forming the requisite intent and did not alter his perception of any threat or provocative conduct to any material degree for the purposes of considering self defence or provocation.
Evidence as to the effect of benzodiazepines was given at the trial by Associate Professor Graham Starmer and Dr Judith Perl. Both accepted the potential for such drugs to affect memory, albeit to varying degrees. Associate Professor Starmer also described the effect of benzodiazepines as producing a calming effect or making anxiety less intrusive. However, he stated that there were some reports of what were said to be "paradoxical reactions", that is excitement instead of tranquillity. Associate Professor Starmer reviewed the video recording of the offender's interviews with the police. He was not able to conclude that they revealed that the offender was affected by benzodiazepines.
The jury were directed on the basis that the Crown case was that the offender intended to kill or inflict grievous bodily harm. Their verdict leaves open either possibility. The Crown submitted that the Court should be satisfied that the offender formed an intention to kill the deceased. It pointed to the evidence of Dr Orde that I have summarised above, especially concerning the two blows to the skull and the large number of injuries to the deceased's body. Mr Austin submitted that the evidence suggested that the offender's intention was to extract information from the deceased as to the whereabouts of his phone and money. He submits that is inconsistent with an intention on the part of the offender to kill the deceased. There is considerable force in that submission, although the offender's conduct, including his dealings with Ms McCaw, suggested he was overwhelmed by anger as well.
In his second interview the offender told the investigating police that he "just wanted my money and my phone" and repeatedly denied that he intended to kill the deceased. The evidence of the witnesses referred to at [16] confirms that by the time the confrontation between them had moved outside and just prior to the deceased being placed in the Otto bin the offender was still trying to extract information from the deceased. Although the evidence of Dr Orde clearly indicates that a number of blows to the deceased's head and body were administered by the offender it is difficult to determine the full extent of the injuries caused by the offender given that further bruising was likely to have been caused while the deceased was transported in the Otto bin and then dragged across rocks at the creek. Accordingly, I am not satisfied beyond reasonable doubt that the offender intended to kill the deceased. I will sentence him on the basis that he intended to inflict grievous bodily harm.
The end result is that, having regard to the jury's verdict, I am satisfied that the offender struck the deceased after concluding that the deceased had stolen his mobile phone and money. Initially at least he sought to extract information from the deceased but he was also consumed by anger. He struck the deceased at least twice with the wooden object found in his kitchen. He also beat him with his fists. The confrontation commenced inside the offender's house but continued outside. The offender was still the aggressor but there was some resistance from the deceased. I am not, however, satisfied beyond reasonable doubt that at any point he intended to kill the deceased.
The offender transported the deceased to the creek in an Otto bin as described. He did so believing the deceased to be already dead. He then went to Ms McCaw's house and woke her to help him find his missing phone and cash. At this stage he was still fuelled by anger. However he eventually led her to the deceased and helped with obtaining an ambulance. He initially lied to the police about his involvement but his story evolved by the time of the second interview to something more approximating the truth. His conduct after killing the deceased appears to be a mixture of sustained ongoing anger giving way to panic then to despair at the predicament he found himself in.
The offence was definitely not premeditated. The events that led to the death were commenced by the deceased menacing Ms McCaw and the offender intervening to protect her and calm the situation. The original attack by the offender on the deceased was an impulsive response that arose out of his genuine belief that he had been robbed. However the attack was sustained and very violent. The dumping of the deceased in the creek and the treatment of the deceased's de facto, Ms McCaw, was cruel albeit the result of anger and panic.
Following the decision in Muldrock there is some doubt about whether sentencing courts are required or permitted to make an assessment of whether an offence in respect of which there is a standard non parole period is in the low, middle or high range of objective seriousness (see R v Koloamatangi [2011] NSWCCA 288 at [19] per Basten JA). It suffices to state that the description in [43] to [45] satisfies me that this offence falls below the middle of the range of objective seriousness for the offence of murder (cf s54A(2) of the Sentencing Act). It follows that the standard non parole period has a reduced significance in this case although it remains an important legislative guidepost.
Victim Impact Statements
A victim impact statement from Ms McCaw was read to the Court by her representative (s 30A of the Sentencing Act). In the statement Ms McCaw described the anguish and hurt to her and her children resulting from Hoang Tang's death. She stated that at the time of his death they were in the process of reconciling with a view to reuniting their family. She states that her eldest son has been severely affected by his father's death. He has gained weight and is "so full of anger and hate". She describes the loss for the deceased's sons as they grow up without a father. As I have already stated the events leading to his death commenced on the anniversary of the death of their son. In every year from this point the days from 6 to 8 July will be doubly bitter for Ms McCaw and her family.
The role played by victim impact statements was discussed in MAH v R [2006] NSWCCA 226 at [61] to [63]. Its contents do not constitute evidence which I can act on, much less material which operates in aggravation of the offence or adversely to the offender. That said, the Court acknowledges the pain and anguish caused to Ms McCaw and her family.
The Offender's Personal and Psychiatric History
The offender's personal history was set out in a report from a psychiatrist, Dr Olav Nielssen. In some cases the adducing of evidence in that format warrants some scepticism about the reliability of the history. In this case, however, the history as recounted by Dr Nielssen appears to be reliable. It is consistent with the offender's evidence at the trial and sits comfortably with what is suggested by his criminal antecedents.
The offender is now just over fifty years of age. He is the elder of two siblings. His parents separated when he was one and his mother raised him and his sister. His mother became an alcoholic and passed away from complications due to alcohol abuse several years ago. His father committed suicide. He has no contact with his sister.
Dr Nielssen reports the offender as stating that he suffered an episode of meningitis when he was six years old which led to learning difficulties. Dr Nielssen described the offender's school years as difficult. He left school in Year 7 after having repeated three years to that time. He could not read when he left school, although his reading has improved since then.
During his adolescence the offender was placed in a boys' home on the basis, as described by Dr Nielssen, that he was an "uncontrollable child". Dr Nielssen reports that he was physically and sexually abused by other boys in the home. The offender adverted to this at the end of his first interview with the investigating police when he retracted his allegation of sexual assault against the deceased. I accept that it occurred.
The offender has worked for a brief period as a cleaner and as a storeman. In total he has only worked for two to three of the thirty years since he turned eighteen.
Dr Nielssen reported that the offender had one long term relationship which was interrupted by a period of imprisonment in the 1980s. The offender told Dr Nielssen that it recently broke down as a result of his abuse of "tablets". His partner has an apprehended violence order against him. There were two sons of the relationship who are now aged sixteen and nineteen. The offender has had some contact with them.
Dr Nielssen reported a history of substance abuse which commenced with the offender smoking cannabis at the age of fourteen. The offender told Dr Nielssen that he progressed to amphetamines, and began using heroin before the age of eighteen. This resumed after his release from prison during the 1980s. The offender told Dr Nielssen that he stopped using drugs for several years until a relapse was said to have led to a further term of imprisonment for drug-related property offences. The offender told Dr Nielssen that he had been on a methadone program continuously from 1996. This is consistent with the evidence the offender gave at his trial.
The offender commenced abusing benzodiazepine tablets about eight to ten years ago. He obtained tablets bought from other drug users. Dr Nielssen reports the offender describing numerous episodes of amnesia of events associated with his abuse of benzodiazepines. This is consistent with the pharmacological evidence that I have referred to above.
Although the offender had extensive contact with psychologists and counsellors when he was a juvenile, he had not received any long-term counselling. Dr Nielssen reported the offender as having suffered some form of a psychotic episode some weeks before the murder. He was taken to the psychiatric ward of Campbelltown Hospital by the police after he was observed standing on the doorstep of his home brandishing two carving knives.
Dr Nielssen diagnosed the offender as suffering from substance dependence and abuse disorder, said to be in remission, a mild intellectual disability as well as probable brain injury and a learning disorder arising from meningitis in his early childhood. Dr Nielssen opined as follows:
"Mr Shee has a mild intellectual disability that was probably at least partly due to the effects of a bout of meningitis at the age of six ... His condition has left him effectively illiterate and with limited reasoning ability and problem solving capacity.
Mr Shee seemed to have a fairly rigid style of thinking, which affected his assessment of the circumstances of the offence and his capacity to describe his own state of mind around that time ... His intellectual disability left him with [a] fairly limited capacity to express his remorse regarding Mr Tang's death, other than to say he had not intended to kill him and he regretted being involved.
The reported circumstances of that admission to hospital several weeks before this offence, suggests that Mr Shee was in a disturbed state of mind around the time of the offence, even if the offence itself was not the direct result of symptoms of delirium or psychosis. Moreover, it seems likely that he was significantly intoxicated with medication that reduced inhibition at the time of the offence.
Mr Shee was assessed to carry a low risk of re-offending, as he had managed to stay out of trouble for many years prior to the offence, despite the emotional effects of a disturbed childhood and his continued substance abuse, and by the time he is eligible for release he will have had the benefit of long term abstinence and will have reached an age in which the incidence of offending is greatly reduced."
I address the questions of remorse and the offender's prospects of re-offending below. At this point I note that I do not accept that the effect of his induction of benzodiazepines was to reduce his inhibitions. Neither Dr Perl nor Associate Professor Starmer gave any persuasive evidence to that effect.
Dr Nielssen also noted that Mr Shee had received active treatment for infection with Hepatitis C and has an increased risk of developing cirrhosis and liver cancer and hence had a reduced life expectancy. Mr Austin accepted that, having regard to the level of medical care that he is receiving in prison, the prognosis for the offender was such that this is not a mitigating factor on sentence.
Prior offences
The offender's record commences with a conviction for stealing when he was twelve, followed by stealing and motor vehicle offences in his teens. Consistent with the history recounted by Dr Nielssen, this led to his being committed to an institution. Throughout his teens and into his early adult years he continued to accumulate convictions for offences involving motor vehicles and assaults. When he was twenty, he received a substantial custodial sentence for armed robbery and escaping lawful custody. He served a number of years for those offences. He was again imprisoned for a series of break and enter offences in his mid to late twenties.
From approximately 1993, when he was 31, there was a significant change in the offender's criminal record. From that time until now he has received a few convictions for what appear to be (relatively) minor personal violence offences such as assaults and contravening apprehended domestic violence orders, as well as malicious damage. He has not served any period in custody from the early 1990s until the time that he was arrested for this offence.
Mr Austin conceded that the offender does not receive any benefit from his criminal record. This is certainly the case. However, the record confirms the history as recounted by Dr Nielssen. It reveals a troubled youth who during his twenties graduated to serious crime while in the grip of heroin addiction. Since his early thirties he has resisted heroin and has not engaged in calculated criminal activity. Instead he has had intermittent and relatively minor encounters with the criminal justice system which appear to develop from a mixture of his battle with other drugs and his struggles with family relationships. In his twenties the offender appears to have lived well outside society's norms. From his early thirties he has been struggling on its margins.
Aggravating and mitigating factors
Subsection 21A(2) of the Sentencing Act lists a number of aggravating factors to be taken into account in determining the appropriate sentence for an offence. This is subject to the caveat that the relevant factor cannot be taken into account if it is already an element of the offence (s 21A(2)) or if it would otherwise be "contrary to any Act or rule of law to do so" (s 21A(4)).
Two aggravating factors are potentially relevant. First, arguably the offence involved the use of a weapon, namely the piece of wood which the offender used to strike the deceased (s 21A(2)(c); see R v Williams [2011] NSWSC 583 at [34]). No submissions were directed to this by either party presumably because the use of a weapon such as a wooden object is not an uncommon occurrence with murder and does not truly aggravate the offence (see R v Bugmy [2011] NSWSC 357 at [28] per McCallum J). I will not treat this as adverse to the offender.
Second, the offender has a record of previous convictions including for "serious personal violence offences" (s 21A(2)(c)). However, before they can operate adversely to an offender these convictions must meet the description stated in the joint judgment in Veen v R (No 2) [1988] HCA 14; 164 CLR 465, at 477-478, namely they must indicate that the offender has "manifested in his commission of the instant offence a continuing attitude of disobedience of the law" in which case "retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted" (see R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566). I have described the offender's criminal history above. It does not satisfy Veen No 2.
Subsection 21A(3) specifies a number of mitigating factors to be taken into account when determining the appropriate sentence. Subsection 21A(3)(h) refers to whether the offender has "good prospects of rehabilitation, whether by reason of the offender's age or otherwise". I have referred to the assessment of Dr Nielssen concerning the offender's prospects of rehabilitation above. By the time the offender is released from the period of imprisonment which I will impose, he will be well into his sixties. His history indicates that from the early 1990s he has eschewed involvement in any organised or planned criminal activity. Instead he appears to have been unable to control his response to perceived provocations or stressful relationships which he was ill-equipped to deal with. The murder of the deceased was an extreme example of this.
It is inevitable that the offender will be imprisoned for a significant period. As stated by Dr Nielssen, this will impose a period of long-term abstinence from drugs upon the offender. It also means that he will be released at an age when it could be expected that incidents of the kind that he has engaged in will be greatly reduced. One matter counter-balancing that is that his intellectual functioning is such that it is difficult to envisage him developing insight and coping mechanisms for situations he finds stressful (see [74] to [75] below). Nevertheless, I agree with Dr Nielssen's assessment of him having a low risk of re-offending at the likely time of his release so far as serious acts of violence are concerned. I assess his risk of committing lesser offences of violence as being low to medium.
Subsection 21A(3)(i) specifies that a mitigating factor is the remorse shown by the offender, provided that there is evidence that they have accepted responsibility for their actions and that they have acknowledged any injury, loss or damage caused by their actions, or made reparation for such injury, loss or damage (or both). The Crown submitted that the conduct of the offender in transporting the deceased to the creek bed using an Otto bin was evidence of a lack of remorse or regret for his actions at a time close to the commission of the offence, and that this lack of remorse is further demonstrated by the lies he told to the investigating police.
A review of the evidence does not reveal much by way of statements by the offender that appear to involve any acknowledgement by him of the injury and loss caused by his actions. His transport of the body to the creek bed is inconsistent with such remorse, albeit it was undertaken through panic. His treatment of Ms McCaw did not reveal regret for his actions either. He did render some assistance after Ms McCaw had contacted the ambulance, but as the Crown noted he later lied to the investigating police about the deceased sexually assaulting him. In the initial part of his second interview, the offender retracted that accusation and repeatedly stated that he did not wish to kill him. From that one might be able to discern some regret on his part not just for the predicament he was in but for the consequences for the deceased. However, in the latter part of the interview the offender's conduct became erratic and bizarre. He racially slandered the deceased.
Dr Nielssen commented about the offender's limited capacity to express remorse regarding the deceased's death, other than to say that he had not intended to kill him and he regretted becoming involved. I accept the proposition that the offender has a limited capacity to express remorse, but I cannot find any conduct of the offender that demonstrates remorse either. In the end, I am not satisfied that there is any acceptable evidence upon which I can find that the offender is remorseful.
Mr Austin referred me to the description given by Dr Nielssen of the offender having a mild intellectual disability and the unusual event that occurred two months prior to the offence. He submitted that such a mental condition can operate to reduce the moral culpability of an offender, if the condition is active and relevant to the offending behaviour itself. In those circumstances, the condition may render the person an inappropriate vehicle for general deterrence.
I have described Dr Nielssen's description of the offender's mental condition above. Dr Nielssen opined that the offender had a mild intellectual impairment. There was no testing undertaken to confirm this but I nevertheless accept his conclusion. It is consistent with the offender's personal history especially his performance at school. There was nothing in his presentation as a witness or his recorded interviews with the police that suggested the offender had any higher level of intellectual functioning than that suggested by Dr Nielssen.
The connection between the existence of any such impairment and the commission of the offence can be a difficult matter to assess. In Muldrock the High Court noted at [54] that a question as to a causal relationship is "less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence"; i.e. the existence of their mental retardation and the fact of the commission of the offence will in many cases obviate the need for any further causal enquiry. In this offender's case it certainly could not be said that he lacked the capacity to reason as to the wrongfulness of his conduct. However, the limitations on his intellectual functioning described by Dr Nielssen confirm an inability on his part to cope with what others might see as minor acts of provocation.
To an extent, I accept Mr Austin's submission that there is some mitigation of the offender's moral culpability for the offence by reason of the limitations upon his intellectual functioning, as identified by Dr Nielssen (see Muldrock at [54]). I also accept the submission that there should be some amelioration of considerations of general deterrence and retribution in sentencing him (see Muldrock at [53] to [54] and [58]; Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177] per McClellan CJ at CL). The need for specific deterrence remains. I have already addressed his prospects of re-offending.
Mr Austin made detailed submissions to me concerning the appropriate range of suitable sentences. He sought to draw an analogy between the circumstances of this offence and other sentences for murder in which a non-parole period of less than twenty years was imposed. Both counsel before me accepted the limitations upon any such analysis, in that such cases reflect a variety of different circumstances. Within those limits, I have considered the cases referred to by Mr Austin. I do not consider it necessary to review or refer to them. It will be apparent from the sentence that I impose that I accept that a sentence involving a non-parole period of less than twenty years is appropriate.
Finally I note that the offender has been in custody since his interview by the police on 7 July 2010. It is agreed that any sentence should be back-dated to that time.
The sentence
Gregory John Shee, for the offence involving the murder of Hoang Tang you are convicted. You are sentenced to a term of imprisonment.
Pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999, I set a non-parole period of fifteen years imprisonment commencing on 7 July 2010 and ending on 6 July 2025 with an additional term of five years commencing on 7 July 2025 and ending on 6 July 2030.
The total term of imprisonment is one of twenty years. The offender will be eligible for release on parole on 7 July 2025 and the offender's sentence will expire on 6 July 2030.
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Decision last updated: 23 November 2012
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