R v Urlich
[2018] ACTSC 345
•4 October 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Urlich |
Citation: | [2018] ACTSC 345 |
Hearing Date: | 22 August 2018 |
DecisionDate: | 4 October 2018 |
Before: | Burns J |
Decision: | See [35]-[37] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – manslaughter – improperly interfering with a dead human body – no evidence that untreated psychotic illness or substance use disorder contributed to the commission of these offences – moral culpability – did not enter a plea of guilty to charge of manslaughter – made significant admissions – prospects for rehabilitation – protection of the public – objective seriousness – sentences of imprisonment imposed |
Legislation Cited: | Crimes Act 1900 (ACT) s 48 |
Cases Cited: | Nguyen v The Queen [2016] HCA 17; 256 CLR 656 R v Collins [2004] ACTSC 73 |
Parties: | The Crown (Crown) Milan Urlich (Offender) |
Representation: | Counsel Ms R Christensen (Crown) Mr J Lawton (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 204 of 2016 |
BURNS J:
Milan Urlich, on 15 June 2018, after a 13-day trial, a jury acquitted you of the murder of Andrew Carville but found you guilty of his manslaughter. The death of the deceased occurred at his residence in Evatt late on the evening of 4 November 2015. You have also entered a plea to a charge of improperly interfering with a dead human body, contrary to s 48 of the Crimes Act 1900 (ACT). The bench sheet from the Magistrates Court indicates that that charge was committed for trial to this Court, but it is, in fact, a summary offence. It is a charge which should have been transferred as a related charge, and I will deal with it as such. It is now my duty to sentence you with regard to these offences.
The offence of manslaughter carries a maximum penalty of 20 years' imprisonment. It has been described as the most protean of offences in the case of Nguyen v The Queen [2016] HCA 17; 256 CLR 656 at [34]. Because of the many forms that the offence may take, varying from a death caused by negligence up to something bordering upon murder, a wide range of sentences may be imposed with regard to individual offences of manslaughter. Every offence of manslaughter involves the death of a human being, so that to a great extent the objective gravity of the individual offence depends not upon the consequence of the offence but upon the particulars of the offence and the moral culpability of the offender. Whilst the objective gravity of the offence may vary greatly from case to case it is always a serious offence because it involves the taking of a human life. The offence of improperly interfering with a dead human body, I note, carries a maximum penalty of two years' imprisonment.
No penalty that this Court can impose can equate to the loss of Mr Carville's life. We do not live in an age which seeks revenge for the unlawful taking of a life or where the credo is an eye for an eye. Our society, through the laws passed by the legislature and implemented by its courts, seeks to appropriately punish offenders based upon the culpability of individual offenders and not simply on the consequences of their actions. The maximum penalty prescribed by the legislature is an important yardstick in sentencing because it is an indicator of the penalty that the legislature has fixed for an offence that falls within the worst category of a particular type of offending.
In the course of your trial you admitted that you killed Andrew Carville. You said that you did so in self‑defence after he attacked you with a knife. I note that when the body of the deceased was located a knife was found with it, although it appears that the deceased had not suffered any stab wounds. I am satisfied that the evidence that you were attacked by the deceased was not the truth. In my opinion, the jury rejected your evidence in that regard. This is unsurprising, as it involved an allegation that the deceased, who hardly knew you, attacked you with a knife for no reason. In addition, the evidence received during the trial concerning the character and habits of the deceased made such a senseless and aggressive act on his part highly improbable. The circumstances in which the knife came to be found with the body of the deceased must remain a mystery in the absence of truthful evidence from you. The fact that the jury acquitted you of the charge of murder means that they were not satisfied that at the time you did the acts which admittedly caused the death of the deceased you intended either to kill the deceased or to inflict grievous bodily harm upon him. I am satisfied that the jury convicted you of the offence of manslaughter on the basis that the deceased's death occurred as a consequence of an unlawful and dangerous act committed by you.
It was the Crown case, based upon forensic evidence, that you caused the death of the deceased by strangulation and, in particular, by gripping his throat in a pincer-like action which caused damage to his hyoid bone and thyroid cartilage. On the other hand, you testified that after the deceased came at you with a knife you put him in a chokehold, in which the front of his neck was held in the crook of your elbow and you continued to hold him in that position until he dropped the knife. As I have said, I do not accept the evidence that the deceased attacked you with a knife. It is therefore not possible to accept that you held the deceased in a chokehold until he dropped a knife. But the question remains, is it possible to determine the precise means of strangulation of the deceased?
Dr Beng Beng Ong, a forensic pathologist, conducted an autopsy on the body of the deceased on 21 November 2015. At that time, the body was in an advanced state of decomposition. The autopsy revealed that the right horn of the thyroid cartilage was fractured and that there was a dislocation between the body and the right greater horn of the hyoid bone suggesting a fracture. Dr Ong stated that he would expect the cause of a fracture of the thyroid cartilage to be some form of trauma involving continuous pressure on the neck, such as strangulation. He said that manual strangulation could cause such an injury, but so could the use of an armlock. In cross‑examination Dr Ong accepted that the injuries to the deceased's neck were consistent with pressure being applied to the neck which could have been occasioned by an armlock. It was also possible, he said, for those fractures to have been caused post‑mortem.
A second pathologist, Dr Malcolm Dodd, was called by the Crown at your trial. Dr Dodd was an expert in determining the cause of death of people who had been dead for some time. He reviewed the findings made by Dr Ong at autopsy. With regard to the damage to the hyoid bone, it required a deep inwards and compressive force, such as a pincer movement with the hand. With regard to the damage to the thyroid cartilage, it required not just a blunt force or compressive force to the front of the neck, but required something more of an internal gripping-like action. An example of such force would be a grip to the throat using a pincer‑type action. With regard to the possibility of these injuries being occasioned by an armlock or chokehold, Dr Dodd stated that if pressure was sustained it could lead to unconsciousness, and if continually sustained it could lead to death. The mechanism of death in that regard is compression of blood vessels and suppression of nerves rather than injury to the neck structures. He stated that he could almost certainly exclude the possibility of damage to the hyoid bone being occasioned by an armlock or chokehold and that it was very unlikely that the fracture to the thyroid cartilage could have been occasioned by an armlock or chokehold.
With regard to the degree of force required to inflict the injuries to the deceased's thyroid cartilage and hyoid bone, Dr Dodd said that it was very difficult to quantify but he would regard this particular set of injuries as requiring somewhere between mild to moderate force. Dr Dodd also stated that he could not exclude the possibility that the damage to the hyoid bone had occurred post‑mortem. Dr Dodd was unable to estimate how long pressure to the neck of the deceased would have had to be sustained to cause death, but did note that an older person in poor health could die as a result of compression of the arteries in the neck faster than a younger person.
In my opinion, the expert evidence is inconclusive. It is more probable than not that the damage to the deceased's hyoid bone and thyroid cartilage was occasioned by you gripping the deceased by his throat with a pincer‑type action. To the extent, however, that such a finding could reflect a greater culpability on your part as evidencing a more dangerous act than simply applying pressure to the neck of the deceased via a chokehold, I am required to make such a finding to the standard of beyond reasonable doubt. Other injuries to the body of the deceased were revealed at autopsy, including fractures and dislocations affecting the bones of the deceased's chest. It was the evidence of Dr Ong that these injuries could have been occasioned either before death or after death. Bearing in mind the limited period during which you were alone with the deceased on 4 November 2015 and the absence of any clear signs of a struggle within the hallway of the deceased's house, it is probable that these fractures were occasioned after death, probably by you placing large and heavy rocks on the body of the deceased as part of your attempt to hide the body. I find that I am unable to be satisfied beyond reasonable doubt that the damage to the deceased's hyoid bone and thyroid cartilage were occasioned before his death.
10. In the absence of truthful and reliable evidence from you about what occurred between yourself and the deceased in his house on 4 November 2015, I cannot make any finding of any greater particularity than that you deliberately applied pressure to the neck of the deceased with sufficient force and for a sufficient period to cause his death.
11. You gave evidence that you attempted to revive the deceased after he lost consciousness. I do not accept that evidence. First, I am satisfied that your evidence concerning the events at the home of the deceased on 4 November 2015 is generally unreliable and was calculated to absolve you of culpability for his death, or at least to minimise your responsibility. Secondly, you took no steps to seek assistance for the deceased after you released him from your hold and you determined that he was dead, instead wrapping the body of the deceased in a carpet and calmly walking out of the house carrying the deceased's body wrapped in the carpet and placing it in the tray of your utility. You said nothing to Sharyn Chapman, who was waiting for you in the car, about allegedly being attacked by the deceased. Ms Chapman noticed nothing unusual about your demeanour when you got back into your vehicle and drove away. Your actions in the immediate aftermath of the death of the deceased strongly suggest that you were not particularly perturbed by his death.
Later that night you drove your utility, with the body of the deceased still wrapped in the carpet and placed in the tray, and abandoned it at a property on Sutton Road, Majura. You then proceeded on foot in a northerly direction along Sutton Road before turning onto Norton Road and heading east. You were observed to be behaving oddly by a number of people while you were on Norton Road. At about 7.20 am on 5 November 2015 you jumped in front of a car on Norton Road. The driver of the car swerved to avoid you and stopped a short distance up the road. He called Emergency Services before speaking to you. You did not respond to any of his questions. The driver noticed that your eyes were intensely red and your pupils were quite large. The driver of the vehicle gave you a lift towards Queanbeyan, but came upon a police vehicle travelling in the opposite direction on Sutton Road. The driver stopped and spoke to police, who removed you from the other vehicle. You told police that your name was Kurt. An ambulance then arrived and conveyed you to Queanbeyan Hospital. You subsequently left the hospital and made your way to the Australian War Memorial, where you stole a Ford Econovan. You drove this vehicle to the area of Phillip Island in Victoria and abandoned it a short distance from the home of your brother, Marc Urlich.
13. You and your brother returned to the ACT by car on 13 November 2015. I am satisfied that the reason that you returned with your brother was in order to obtain identification to enable you to apply for government benefits in Victoria. I am satisfied that your brother was not aware that you had killed the deceased when he agreed to travel with you from Victoria to the ACT on 13 November 2015. The plan initially was for you to obtain your identification and then immediately return to Phillip Island. That changed, however, and you left your brother's company in the ACT with an arrangement that you would meet him later. Sometime on the early morning of 14 November 2015 you returned to the property on Sutton Road, drove your utility with the body of the deceased in the back to an area adjacent to the property on Sutton Road and there concealed the body under a number of large rocks. You then drove the utility south on Sutton Road to the area of the Molonglo Gorge Recreation Reserve, where you abandoned the vehicle after driving through a wire fence. You then attempted to set fire to the vehicle using diesel fuel, but this was unsuccessful. You abandoned the vehicle and left the area.
Later that morning, you attended the residence of an acquaintance in Spence. He provided you with a jumper and you left your jacket with him. You then asked him to drive you to the airport, saying that he was never going to see you again. Your acquaintance ultimately drove you to Kippax. You were arrested by police on 18 November 2015 and underwent a forensic procedure before being released later that evening. You were arrested and charged with the murder of Andrew Carville on 27 April 2016 and you have remained in custody since that time.
Before determining the objective seriousness of the offence of manslaughter I should refer to the report of Dr Owen Samuels, a consultant psychiatrist, dated 5 August 2018, which was tendered at your sentence hearing. Dr Samuels is the clinical director for Mental Health, Drug and Alcohol Services for Northern Sydney Local Health District, but he retains a role as a visiting psychiatrist in the ACT, with clinical input to the ACT Forensic Mental Health Services. I am satisfied that Dr Samuels is a very experienced forensic psychiatrist. He was asked to prepare a report addressing, in particular, the application of the Verdins principles in sentencing. He carried out a psychiatric assessment of you on 3 July 2018 and also reviewed your psychiatric records held by ACT Health. You told Dr Samuels that you started using cannabis during your teenage years around the age of 14. You told him that at times you would consume cannabis to assist with the distress of auditory hallucinations, although you acknowledged that the cannabis would also worsen your symptoms. You told him that you started using amphetamines from the age of 17 and you would consume this drug weekly, spending up to $150 each week. You told Dr Samuels that this assisted with your anxiety and depression and you said that you had last used amphetamine five years ago.
You told Dr Samuels that methamphetamine was your drug of choice and you started using it from the age of 25. In more recent years you would use this substance on a daily basis, spending approximately $50 a day. You told him that at times it would make your auditory hallucinations worse, but at other times would relieve them. You denied methamphetamine use ever making you aggressive. You told him that you used methamphetamine on 4 November 2015, the date of the present offence of manslaughter.
17. Your first contact with Mental Health Services was on 19 November 2015 when you were in custody, being interviewed and undergoing the forensic procedure. Police contacted the Crisis Assessment and Treatment Team stating that you appeared to be psychomotor agitated, vague and acting strangely. You were assessed at the city watch house, but you refused to respond to any of the questions put to you. The assessor spoke to a friend who had accompanied you, who said that he believed that you suffered with psychosis every couple of weeks. The assessor formed the opinion that there was no evidence of a mood or psychotic disorder and opined that any apparent paranoia was in the context of you being drug affected.
18. Your next contact with Mental Health Services was on 12 April 2016 when you referred yourself to the Substance Misuse Service. You were noted to be guarded and suspicious and having abnormal movements. The attending medical practitioner described marked poverty of speech and questioned the presence of a psychotic illness. The attending medical practitioner spoke to your mother, who said that she was very concerned about your worsening mental health.
19. Some five days' later, you were assessed in the Emergency Department after you had been found by police in Yass, five kilometres from your car and reportedly in a catatonic state. The assessing psychiatry registrar recorded that you had attempted suicide approximately two years' previously. He described you as a poor historian and found it difficult to obtain a coherent explanation of events from you. You said that you were hearing a number of voices, a combination of both male and female voices, which were constantly troubling you. You said that you had used methamphetamine two days previously.
20. You were admitted to the Adult Mental Health Unit and you were described as being somewhat guarded and suspicious. You told your treating psychiatrist that you had not felt normal for some time and that you were hearing voices which were at times telling you to do to things. You said that these voices were talking to one another and that at times you felt that you were being controlled. You were commenced on antipsychotic medication. When reviewed later in the week, you presented with restricted, blunted, guarded and perplexed affect, yet with an underlying irritability and agitation. You were described as paranoid and reported at times experiencing command hallucinations. It was opined that you were suffering a first episode of psychosis, most likely as a result of schizophrenia but in the context of illicit drug use.
21. By 20 April 2016 you described the auditory hallucinations as being less prominent and less intense. You described never feeling safe and not being able trust anyone. You believed that there were cameras everywhere, both on the ward and outside the hospital. Your medication was increased. In the light of gradual improvement you were allowed unescorted from the unit but failed to return. You eventually returned later in the evening and it was established that you had gone to one of your brothers' houses. You were discharged on 27 April 2016 and then charged with the murder of the deceased.
22. You have subsequently been assessed, whilst in the AMC. You continue to report auditory hallucinations of varying intensity. Your mood has also varied over the period that you have spent in custody. You have reported delusions, such as a belief that your case manager was able to read your mind. You have remained on antipsychotic medication but with limited benefit.
With regard to the present offence, you told Dr Samuels the same version of events that you gave in evidence at the trial. You told Dr Samuels that the voices in your head were quiet at that time and that they were not saying anything to you. You deny that the voices had told you to hold the deceased by the neck. You said that your only recollection of auditory hallucinations at the material time was after you got into the car and the voices were telling you where to go. You said that the voices directed you to the property on Sutton Road and you had limited recollection of what occurred then until you were at Queanbeyan Hospital.
Dr Samuels expressed the opinion that you are suffering from a substance use disorder and a psychotic disorder, namely, schizophrenia. Your predominant symptoms of schizophrenia include auditory hallucinations. You were also described as exhibiting pervasive paranoia and thought disorder. You demonstrated negative symptoms of schizophrenia characterised by your restrictive affect and emotionality and your history was suggestive of psychosocial decline. Dr Samuels believed that you were suffering with symptoms of your psychotic illness at the time of this offence, but he was unable to establish a clear causal link between your positive psychotic symptoms and that of the offence. You denied harbouring any paranoid beliefs about the deceased and told Dr Samuels that your only reason for your actions was self‑defence. While you told Dr Samuels that you used methamphetamine on 4 November 2015 he was unable to establish any causal link between the use of that substance and the offence of manslaughter. Dr Samuels was unable to find any evidence that either the positive or negative symptoms of your untreated psychotic illness materially contributed to your committing this offence. Dr Samuels was unable to find evidence to show that you were so impaired that you did not appreciate the wrongfulness of your conduct.
Dr Samuels stated that you have been accommodated in strict protection within the AMC, resulting in you having little access to structured activities in prison other than a weekly cooking group. Balanced against this, however, was the fact that you appeared to have a stronger engagement with Mental Health Services while incarcerated, potentially due to stable accommodation, supervision of medication and abstinence from illicit drugs. You are able to access treatment for your mental health while incarcerated, and Dr Samuels was unable to identify any other adverse effects which might impact upon you if you are sentenced to further imprisonment. It was noted that you may be at a higher risk of self‑harm in custody, although this could be managed through mental health support and operational considerations of your placement within the prison.
26. What I derive from Dr Samuels' report is that there is no evidence that either your underlying and then untreated psychotic illness or your substance use disorder contributed to the commission of these offences such as to reduce your moral culpability. This was a senseless killing of a relatively frail 52 year old man. You were a strong, healthy young man of 28 years. In my opinion, your moral culpability is high. The application and maintenance of force to the throat of your victim to the point of loss of consciousness is clearly a highly dangerous course of conduct which, in this case, resulted in death. I accept that the offence of manslaughter was not premeditated or planned in any way. In the absence of truthful evidence from you, your motive for killing Mr Carville must remain unknown. I am not satisfied that you acted in company with any other person in your attempts to conceal this offence after you returned to the ACT on 13 November 2015. Your amateurish attempt to dispose of Mr Carville's body and to burn the utility at Molonglo Gorge does not speak of a well thought out plan.
27. I would assess the offence of manslaughter as in the upper range of such offences. It involved a very dangerous act on your part and occurred in the victim's own home. I would assess the offence of improperly interfering with a dead human body as in the mid‑range of such offences.
28. I note that you are currently 31 years old, although you were 28 years old at the time of this offending. You have no relevant criminal history. You are the youngest of six siblings and your parents separated when you were 12 years old. You stated, however, that this was an amicable split and did not cause any disruption to your childhood. You described your childhood to the author of the Pre‑Sentence Report in positive terms. You are single and have no dependants. You reported leaving the formal education system after completing Year 10, and initially working as a roofer. You qualified as a bricklayer and worked in that industry for a number of years. You are apparently able to obtain work with one of your brothers when you are released from custody. The Pre‑Sentence Report notes your lengthy history of drug abuse. You maintained to the author of the report the version of events of 4 November 2015 that you gave in evidence. You were assessed as at medium low risk of reoffending. Your main criminogenic risks were your mental health and drug use.
29. While you did not enter a plea of guilty to the charge of manslaughter, consistently maintaining that you acted in self‑defence, you did very early in your trial make significant admissions which greatly shortened the length of the trial and reduced the number of witnesses which the Crown needed to call. It is difficult to determine to what extent this may reflect remorse on your part, but it certainly indicated a willingness to facilitate the administration of justice. I was informed by your counsel that you offered to plead guilty to a charge of manslaughter on the third day of your trial, but that this was not accepted by the Crown. You certainly did not enter a plea of guilty to manslaughter at any time. You have demonstrated little by way of remorse for this offence, but it is possible that your apparent lack of remorse may be connected to your ongoing underlying psychiatric condition.
30. It is difficult to determine your prospects for rehabilitation. You have the support of your family and the availability of accommodation and employment. These are circumstances likely to improve your prospects for rehabilitation. On the other hand, the precise reason for killing Andrew Carville has not emerged in the course of these proceedings. It is therefore difficult to determine whether there is any likelihood of similar offending in the future. Although there is no evidence connecting your drug abuse or your mental illness to the commission of this offence, the likelihood of you successfully addressing these issues is still uncertain. There is certainly a need to consider protection of the public in passing sentence.
31. I take into account in sentencing you the victim impact statements that were tendered by the Crown. They speak of the distress and anguish suffered by the family and friends of Andrew Carville because of his death and the manner of his death. They speak of the deceased as a gentle person who disliked all forms of violence. It is clear that Andrew Carville's death has had a very deep and continuing effect upon his family and friends.
32. Nothing less than immediate terms of imprisonment are appropriate with respect to these offences. I was taken to a number of authorities by your counsel demonstrating sentences that have been imposed with respect to offences of manslaughter in the past. Your counsel submitted this case falls somewhere between the objective seriousness of the offences in R v Collins [2004] ACTSC 73 (Collins) and R v England (Unreported, Supreme Court of the Australian Capital Territory, Chief Justice Miles, 26 April 2001) (England). I do not accept that proposition. The offence of manslaughter in Collins was based upon a single stab wound to the victim's stomach. The offender was substantially intoxicated and immediately after inflicting the wound called an ambulance. The offender was a young man, aged 24 at the time of sentencing. There was evidence that he was deeply remorseful and the sentencing judge believed that he would not reoffend. The sentencing judge was satisfied that the offender had good prospects for rehabilitation. The sentencing judge also acknowledged that the sentence which he imposed of three years and six months' imprisonment for the offence of manslaughter was lower than warranted by the gravity of the offence and should not be regarded as a precedent for any other case of manslaughter.
33. In the case of England, the victim had behaved in what was described as a most objectionable fashion towards the offender and his friends in a bar. There was a subsequent fight between the victim and the offender's friend. Subsequently, the offender and his friends subjected the victim to a combined attack which resulted in his death. The offender was convicted after a trial by judge alone. Although he did not plead guilty the sentencing judge accepted that the offender had demonstrated contrition. The offender was only 21 years of age at the time of sentencing and was born into most unfortunate family circumstances. His father was a violent alcoholic who subjected his wife and children to frequent abuse. The sentencing judge was confident of the offender's prospects for rehabilitation in the community and noted that the offender was at risk of corruption in the prison community. The co‑offender in that case had received a sentence of seven years' imprisonment with a non parole period of five years after a discount for a plea of guilty and promised cooperation in the trial of his co‑offender. It is clear from the sentencing remarks that the sentencing judge in England placed significant weight upon the sentence imposed with regard to the co‑offender and imposed a sentence of seven years' imprisonment with a non parole period of four years.
34. In my opinion, the objective seriousness of the present offence of manslaughter is greater than those in either Collins or England, in addition to whether the subjective circumstances of those offenders were different from yours. In my opinion, the objective circumstances of the present case is closer to the offence committed in R v Navin [2016] ACTSC 109, although without the premeditation which attended that case.
Sentence
With regard to the offence of manslaughter (XO18/3), I record a conviction and you are sentenced to 10 years' imprisonment, commencing 27 April 2016 and expiring 26 April 2026.
36. With regard to the transferred offence of interfering with a dead human body (CC16/04478), I record a conviction and you are sentenced to 12 months' imprisonment, commencing 26 October 2025 and expiring 25 October 2026.
The aggregate sentence which I have therefore imposed is one of 10 years six months' imprisonment, commencing on 27 April 2016 and expiring on 25 October 2026. I set a non-parole period of six years and 10 months' imprisonment, commencing 27 April 2016 and expiring 26 February 2023.
| I certify that the preceding thirty-seven [37] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Burns. Associate: Date: 22 February 2019 |
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