R v Vojneski (No 4)
[2014] ACTSC 307
•11 November 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Vojneski (No 4) |
Citation: | [2014] ACTSC 307 |
Hearing Dates: | 28 July 2014 – 3 September 2014, 30 October 2014 |
DecisionDate: | 11 November 2014 |
Before: | Burns J |
Decision: | The offender is convicted of murder and sentenced to life imprisonment |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Particular Offences – offences against the person – murder – criminal liability and capacity – impact of mental illness on sentence – judgment and punishment – sentence – life imprisonment |
Legislation Cited: | Corrections Management Act 2007 (ACT) Crimes (Sentencing) Act 2005 (ACT) ss 7, 33 |
Cases Cited: | R v Kocan [1966] 2 NSWR 565 |
Parties: | The Queen (Crown) Aleksander Vojneski (Offender) |
Representation: | Counsel Mr Drumgold with Mr Hiscox (Crown) Mr Pappas (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Ben Aulich & Associates (Offender) | |
File Number: | SCC 27 of 2013 |
Burns J:
Background
Aleksander Vojneski, on 3 September this year a jury found you guilty of the murder of Paula Conlon on 27 March 2012. That offence carries a maximum penalty of life imprisonment. It now falls to me to impose sentence.
While the jury found you guilty, it is my responsibility to set out the facts as I am satisfied they occurred. Any fact that has the effect of aggravating the seriousness of the offence must be found to the standard of beyond reasonable doubt. On the other hand, any fact that has the effect of mitigating the offence need only be established on the balance of probabilities.
Paula Conlon was 30 years old on 27 March 2012. She lived in a three‑bedroom house at Hollows Circuit, Macgregor. She was born in England, where she met her husband, Scott Conlon, in 2001. Scott Conlon was Australian, but was in England playing soccer at that time. When they met, Paula Conlon already had a young child, Olivia, from an earlier relationship. In March 2003, Paula and Scott Conlon returned to Australia to live. In September 2005, their daughter, Grace, was born, followed by another daughter, Holly, in May 2008. In late 2010, Paula and Scott Conlon separated, although they continued to reside under the same roof. In April 2011 they moved out the family home in Higgins and Paula Conlon moved to a house at Hollows Circuit, Macgregor. They continued to have shared custody and responsibility for the children.
It appears that after the birth of Holly, Paula Conlon's mental health declined. By 2010 she was regularly using antidepressants. After the separation, she became lonelier and emotionally fragile. Unfortunately, she abused alcohol while she was taking her prescription antidepressants. On 2 October 2011, she took an overdose of her prescription medication and was admitted to Calvary Hospital, where she met you. At that time, you were an inpatient in the psychiatric ward. Some time shortly thereafter the two of you began a relationship which became a sexual relationship.
After the events of 2 October 2011 and her hospitalisation, Paula Conlon had less day‑to‑day responsibility for the care of her three daughters, and that responsibility fell more heavily on Scott Conlon. As at 27 March 2012, Paula Conlon had a 16-year-old boarder, Amos Whitewolf Webb, living in her house. He was the son of a friend who lived in Melbourne, and he was attending college in the Australian Capital Territory (ACT). He had his own bedroom in the house, which was immediately next to Paula Conlon's bedroom.
You, Aleksander Vojneski, were 28 years old on 27 March 2012. You lived alone at Undoolya Street, Hawker. You were unemployed and had a long history of substance abuse and mental illness, to which I will refer in greater detail later. For the moment, it is sufficient to note that you have a diagnosis of paranoid schizophrenia. Your father was estranged from the family, but you continued to have contact with other members of your family, particularly your mother, Julie Vojneski, and your older brother, Vladimir Vojneski. As at 27 March 2012, you were subject to a psychiatric treatment order requiring you to accept treatment for your underlying schizophrenia which took the form of regular injections of antipsychotic medication.
Tendency evidence
I am satisfied that you have a volatile temper, which has revealed itself on many occasions since at least 2001. During your trial, the Crown led evidence of a number of incidents preceding this offence directed towards establishing that you have a number of relevant tendencies, being a tendency to become quickly aroused to anger and to act violently when angered, a tendency to threaten people with knives, a tendency, when angered, to use knives to inflict harm on people or damage objects, a tendency to act violently when under the influence of alcohol or marijuana, or a combination thereof, and a tendency to become angry and violent when people do not provide you with money for drugs. I will refer briefly to these incidents.
(a)I am satisfied that on 3 March 2001 you threatened Julian Gray, your sister Biljana's then boyfriend, with a knife and threatened to stab him. You also made threatening statements to your sister, Biljana, whilst holding a knife. I am satisfied that you were intoxicated when these events occurred.
(b)On 23 November 2002 you stabbed Julian Gray in the chest with a knife at a family barbecue in Giralang. You were intoxicated by marijuana and alcohol at that time.
(c)On 3 September 2004, you punched your mother to the head, causing a wound, because you were angry and frustrated by the physical effects upon you of prescription medication.
(d)On or about 8 September 2007, you threatened to stab your then girlfriend, Marina Topete-Colorado, with a knife. This incident occurred because you were jealous because she had given her phone number to another man.
(e)On 6 February 2011, you threatened to get a knife and stab the son of one of your neighbours. Shortly thereafter, you obtained a knife and slashed the tyres of one of your neighbours' cars. You were seen by another neighbour to be carrying a 30 centimetre knife and you then threatened to stab and slit the throat of that neighbour. Police attended the incident on 6 February 2011 and observed you to be quite intoxicated, and you told them that you had been drinking cask wine. Three days later you renewed your threat to slit the throat of that neighbour, but on this occasion you were not observed to be carrying a knife.
(f)On 16 January 2012, you had an argument and a physical altercation with Paula Conlon at your unit in Hawker. You were both highly intoxicated. I am satisfied that you argued with her and you wanted her to leave your unit, but she refused. I am satisfied that there was then a relatively minor physical altercation in which you pushed Paula Conlon out of your unit. At that time, she was only partially dressed. There was evidence that Paula Conlon later complained that you had threatened her with a knife during the course of this argument. She did not complain to the police, who attended the incident, that you had threatened her with a knife, but the evidence establishes that she was very protective of you, and indeed appears to have been more concerned about your welfare in this incident than about what had happened to her. I am satisfied that Paula Conlon told Margaret Geaghan, either on the night of this incident or the following day, that you had threatened her with a knife, but the evidence concerning the form of the threat is not clear. On all of the evidence, I am satisfied that you did threaten her with a knife on 16 January 2012.
(g)I am also satisfied beyond a reasonable doubt, based upon the evidence of your mother and your brother, Vladimir, that in the years leading up to this offence you had a tendency to become angry and aggressive if you were not supplied money to buy drugs. The evidence demonstrates that your mother and brother were, to an astonishing degree, willing to provide you with money for the purchase of drugs. I am satisfied that they did so largely so as to avoid the anger and aggression you displayed when you could not get drugs or you were not provided with money to purchase them.
(h)On 29 August 2013, whilst you have been in custody, you attacked a custodial officer in the Alexander Maconochie Centre for no apparent reason other than your dissatisfaction with his response to your complaint that someone had forged your signature on a buy-up receipt.
I am satisfied beyond reasonable doubt on the basis of this evidence that you had, as at 27 March 2012, the tendencies alleged by the Crown. Of particular significance is the fact that on a number of these occasions you demonstrated a tendency to threaten people with knives and a tendency to use knives when angry. These events also clearly reveal a pattern of reacting violently to relatively minor events, out of all proportion to the nature of those events. I am also satisfied that throughout your short relationship with Paula Conlon you exhibited jealousy of her relationships with other men. You exhibited jealousy of her relationship with her ex‑husband, Scott Conlon, and even of her relationship with her young boarder, Amos Whitewolf Webb.
The events of 27 March 2012
On the morning of 27 March 2012, Paula Conlon received a package containing clothing she had ordered from a web site called ”UnderCover Wear”. That morning she telephoned a friend, Margaret Geaghan, and asked if she could borrow some money because she had no petrol for her car. Margaret Geaghan's granddaughter attended the same school as Paula Conlon's daughter, and an arrangement was made that Margaret Geaghan would give Paula Conlon $50.00 that afternoon at the school.
You accompanied Paula Conlon to the school at about 3 pm that afternoon and you were introduced to Margaret Geaghan. Margaret Geaghan observed that you were wearing black clothing, including what looked like a black T-shirt. You had a big black jacket on and black pants or trackpants, and she also remembered a bit of red in your clothing. Margaret Geaghan gave Paula Conlon the $50.00. This was the first time that Margaret Geaghan had met you.
Later that afternoon, your mother attended Paula Conlon's residence and provided you with cigarettes. In her evidence at the trial, she suggested that she also gave you a small amount of money at the time, about $10.00, but I do not accept that to be the case. You watched a video with Paula Conlon and two of her daughters, Holly and Grace. Amos Whitewolf Webb arrived home whilst you were watching the movie, and later you and Paula Conlon left to take Holly and Grace to Scott Conlon's home. There was an arrangement that Scott Conlon would drop Holly and Grace at Paula Conlon's house on the morning of 28 March 2012 after dropping Olivia at band practice.
After you and Paula Conlon left to take Holly and Grace to Scott Conlon’s home, Amos Whitewolf Webb went to his bedroom and started playing a computer game called League of Legends. This is an interactive computer game played over the Internet. Amos Whitewolf Webb played a number of games of League of Legends on the night of 27 March 2012 with several people over the Internet. During the course of the evening he left his room on a number of occasions and saw you and Paula Conlon together. He said that the two of you appeared to be pretty happy. He observed that both of you were consuming alcohol, and later in the evening Paula Conlon appeared intoxicated.
On one occasion he spoke to you when you were trying to make a telephone call from a mobile phone, telling you where you were likely to receive the best reception in the house. I am satisfied beyond reasonable doubt that you made a number of telephone calls from Paula Conlon's house that evening in an unsuccessful attempt to source illicit drugs on credit, and in particular, methylamphetamine, which is also known as “ice”. The last of these calls occurred at 9.42 pm.
Computer records show that amongst the games of League of Legends played by Amos Whitewolf Webb on the night of 27 March 2012, he played one game between 9.45 pm and 10.25 pm. He played that game with Albert Diaz, who was living in Sydney. Amos Whitewolf Webb said that about 20 minutes into this game he heard Paula Conlon call out "No" about three times, followed by a loud scream. I am satisfied beyond reasonable doubt that this was the time at which Paula Conlon was murdered. This places the time of the murder at approximately 10.05 pm. This was, of course, only 23 minutes after you made the last of the phone calls at Paula Conlon's house.
I am further satisfied that the weapon which was used to murder Paula Conlon was the cook's knife which was taken from the Chefs Toolbox knife set owned by her and kept in her kitchen. The evidence clearly establishes that Paula Conlon was murdered in her bedroom. I am satisfied that you took the knife from the knife block, went to Paula Conlon's bedroom and stabbed her on multiple occasions with that knife. That knife has never been found, and I am satisfied that you took it with you when you left Hollows Circuit, Macgregor after murdering Paula Conlon and later disposed of it.
Your fingerprints were found on the Chefs Toolbox fusion knife in the knife block in Paula Conlon's kitchen, immediately adjacent to the position in the knife block where the cook's knife would ordinarily reside. It is clear to me, from an examination of the fusion knife, that it is unsuitable for use as a stabbing implement. I am satisfied beyond reasonable doubt that when you went to the kitchen to obtain a knife you initially removed the fusion knife, saw it was unsuitable as a stabbing implement, and returned it to the knife block. You then removed the cook's knife, which was well adapted as a stabbing weapon, and took it to Paula Conlon's bedroom. I am satisfied that in doing so you intended to use the knife for the purpose of stabbing Paula Conlon. It is not clear on the evidence whether you and Paula Conlon had been in her bedroom before you went to the kitchen to obtain a knife, or whether you followed her to her bedroom with the knife. It is, however, quite clear that you obtained the knife for the purpose of stabbing Paula Conlon.
Your motive for doing so must remain unknown in the absence of truthful evidence from you about the events of that night, although some clues do emerge from the report of a psychiatrist, Professor Mullen, to whose report I will refer later. I am satisfied, however, that in the weeks leading up to her death Paula Conlon had been attempting to dissuade you from the use of drugs such as methylamphetamine. It may be that she refused to provide you with money or assistance in obtaining drugs on the night of 27 March 2012, causing the two of you to argue. There may have been some other reason for you to argue which is not revealed by the evidence. The fact that no single clear motive for you to murder Paula Conlon on 27 March 2012 emerges from the evidence is not important. The jury was satisfied beyond a reasonable doubt that it was you who inflicted the numerous stab wounds to Paula Conlon and found you guilty of the offence of murder.
A later examination of the body of Paula Conlon revealed the frenzied and remorseless nature of your attack on her. She suffered the following wounds: an oblique incised wound 3.5 centimetres in length and 1.5 centimetres deep to her right temple, a stab wound to her right shoulder 4 centimetres in length and 4 centimetres deep, a stab wound her right upper chest 4.4 centimetres in length and 5.5 centimetres deep, a stab wound to her mid-chest area 2.5 centimetres in length and connecting with the previous stab wound, a stab wound to her left upper chest 5.5 centimetres in length and 5.5 centimetres deep, a stab wound to her right breast 3 centimetres in length and 9.5 centimetres deep, a further stab wound to her right breast 1.8 centimetres in length and 2.5 centimetres deep, a stab wound on the posterior lateral aspect of the right forearm, extending throughout the forearm, a stab wound on the anterior and lateral aspect of the left forearm, which also extended through the forearm and connected with the previous stab wound, an incised stab wound on the medial aspect of the right lower forearm, an incised wound to the base of her right thumb, a further incised wound to the base of the right thumb, a through and through stab wound to her left‑hand, an incised wound to her right thigh and a crescent-shaped incised wound on the lateral aspect of her right lower leg below the knee.
At least 15 sharp force injuries were identified, comprising 11 stab wounds and four incised wounds. At least three stab wounds entered the chest cavity and incised the pulmonary trunk, aorta, left lung hilum and lungs. The right pleural cavity was incised, resulting in 150 millilitres of blood within the pleural cavity. The left chest wound was incised at least twice, creating a collapsed lung and 1250 millilitres of blood within the pleural cavity. The stab wound entered the base of the heart through the pericardial sac, incised the pulmonary artery 1.5 centimetres above the pulmonary valve, sliced through the left branch of the pulmonary artery, extended through the hilum, incised the medial aspect of the left upper lobe of the lung and extended to the left aspect of the sixth vertebral body, which was incised. Another incised injury extended to the upper left lung laterally to a depth of 8 centimetres into the lung parenchyma. The left aorta was incised in the mid-thoracic region. The forensic pathologist who undertook Paula Conlon's autopsy considered that the degree of force required to inflict these injuries on a scale of mild, moderate and severe, was most appropriately considered to be severe.
In the ACT, the offence of murder may be committed in two ways: either by causing death while intending to cause death; or causing death with reckless indifference to the probability of death. The number and nature of the wounds you inflicted on Paula Conlon, particularly those to her chest area, and the nature of the weapon you obtained and used to inflict those wounds, convinces me beyond reasonable doubt that you intended to kill her. I accept that there was little by way of planning that preceded you killing Paula Conlon. You did not bring the murder weapon with you to her house, and you and she were observed to be interacting normally and happily earlier in the evening. I cannot, however, describe the offence as completely spontaneous. You located the knife that you used to kill Paula Conlon in the kitchen, and you carried it to the bedroom before you murdered her, which gave you a short period to reflect on your actions before the offence occurred.
After he heard Paula Conlon scream, Amos Whitewolf Webb was scared and he did not immediately leave his room. He continued to play the game he was playing, which concluded at about 10.25 pm. He then went to the door of his bedroom and heard a soft noise coming from the area of the kitchen. He then left his bedroom and went to the lounge room past the kitchen. As he did so, he heard the side gate of the premises creaking. I am satisfied that the soft noise he heard was you opening the sliding door from the lounge room to the pathway leading to the side gate. I am therefore satisfied that you left Hollows Circuit at or shortly after 10.25 pm on 27 March 2012. Mr Whitewolf Webb observed that the kitchen tap was running. It is probable that you used the time between the murder and when you left at about 10.25 pm to clean the knife and perhaps also yourself.
Your blood was found on the exterior door handle to the bedroom of Paula Conlon and on the floor in the hallway adjacent. When you were arrested, you were found to have a small cut to the leading edge of your right index finger. I am satisfied that you suffered this wound in the attack on Paula Conlon, causing you to deposit traces of your blood on the exterior door handle of her bedroom and on the hallway floor adjacent when you left her bedroom after having murdered her.
Paula Conlon's body was found at about 3.40 pm the following day, 28 March 2012, by her ex-father-in-law, Walter Conlon. Your movements after you left Hollows Circuit are unclear, until you were located asleep in the back of your brother's van in front of the house of Lucious Nicholson at Totterdell Street, Belconnen at about 7.50 am on March by Lucious Nicholson. Lucious Nicholson was employed by your brother, Vladmir Vojneski. There was clear evidence that Lucious Nicholson frequently used your brother's van for work purposes and also for personal purposes. The van was often parked overnight at his house.
The SMS messages sent by Mr Nicholson to your brother at 7.52 and 7.58 am on 28 March satisfy me that your brother's van had not been parked overnight at Lucious Nicholson's house on the night of 27 March. I am satisfied that it came as a surprise to him to find the van parked in front of his house on the morning of 28 March. The evidence does not reveal how the van came to be in front of his house that morning, although it is extremely unlikely that you drove it there yourself. The evidence established that you never drove motor vehicles, instead relying on public transport or on other people giving you a lift or on walking. The evidence suggests that you may have been provided with assistance after the death of Paula Conlon, perhaps with a view to keeping you out of the way until events became clearer. If that were the case, it was not a very well thought out plan, but there may have been little opportunity for thought.
I reject the suggestion that you may have gone to Lucious Nicholson's house on the night of 27 March or the following morning to seek drugs. On the night of 27 March you made a number of phone calls from Paula Conlon's house trying to source drugs, but you did not telephone Lucious Nicholson. In addition, you did not contact Lucious Nicholson after you arrived at his home to request that he provide you with drugs.
It is obvious from the plans and maps that were tendered during the course of your trial that your own unit in Hawker and your brother's home in Higgins were closer to Paula Conlon's house than Lucious Nicholson's home in Belconnen. I am satisfied that you left Hollows Circuit on foot. The evidence establishes that it is highly unlikely that you caught a bus from the vicinity of Hollows Circuit that evening. I am also satisfied that you did not have the money for a taxi. You did not drive motor vehicles, and there is no evidence to suggest that you drove one to Paula Conlon's house on 27 March 2012. There could be no rational reason for you to walk all the way to Totterdell Street, Belconnen when you could have easily walked home or to your brother's house. I therefore conclude that someone drove you to Lucious Nicholson's house in your brother's van and left you there.
I am also satisfied that you changed your clothes between the time that you were at Hollows Circuit on 27 March 2012 and when you left Lucious Nicholson's home on the morning of 28 March. On 27 March, you were wearing a black shirt or T-shirt and a black jacket. Lucious Nicholson gave evidence at your trial that he gave you a change of clothes on the morning of 28 March, but this was contrary to a statement that he made to police on 17 May 2012, to the effect that he did not know what you were wearing when you left his house that day. One thing seems reasonably certain, and that is that you were wearing a red shirt when you left his house that morning, but I am unable to say whether he gave you that shirt or whether you were wearing it when he found you in your brother's van that morning. Mr Nicholson was not a particularly credible witness on those issues. His conduct in attending the Magistrates Court on 30 March 2012, after supposedly reading in the newspaper that police had arrested a Hawker man for the murder of a woman in Macgregor, to see if your name appeared on the court list charged with that offence suggests strongly that at least by that time he had some knowledge of your involvement in the murder of Paula Conlon. His suggestion that he put two and two together and thought that you may have been the person arrested is extremely improbable. The black shirt or T-shirt and black jacket you were wearing on 27 March 2012 have never been located. I am satisfied that you, or somebody assisting you, disposed of the clothing you were wearing at Paula Conlon's house on 27 March 2012, together with the knife you used to kill her.
Offender characteristics
The Pre-Sentence Report
As I noted earlier, you were 28 years old at the time of this offence. You are now 31 years old. A Pre‑Sentence Report was prepared for the sentence hearing. You have been known to ACT Corrective Services since August 2005, when you were convicted of an offence of assault occasioning actual bodily harm. You were sentenced to 12 months' imprisonment, which was suspended, and you were released on a Good Behaviour Order with supervision for nine months.
In May 2011, you were convicted of an offence of damaging property and placed on a Good Behaviour Order for 12 months with Corrections' supervision. Your compliance with community based supervision on both of those occasions was reported to be satisfactory.
The Pre-Sentence Report notes that during your present period in custody you have been accommodated in the Crisis Support Unit on nine occasions for mental health concerns and when displaying volatile behaviour. You have been disciplined on four occasions, twice for violent behaviour against staff, once for violence against another detainee, and once for damage to property. You have maintained regular contact with Forensic Mental Health Services, and you have complied with all treatment recommendations whilst in custody.
You told the author of the Report that you continue to have supportive relationships with your mother, brother and one of your sisters. You acknowledged that problematic drug use had been a significant issue whilst you were in the community, disclosing problematic use of cannabis, alcohol and methamphetamines. You acknowledged that you had been advised by your mental health support workers to abstain from illicit substance use. You told the author of the Report that you were dependent on the substances that you used and would become angry if you could not access drugs when you desired. You referred to obtaining money from your family to purchase drugs, but declined to provide details. The Report notes that you had been engaged in drug counselling in the community for approximately eight months before this offence.
During your period in custody, however, you have not undertaken any treatment for substance abuse. Your mental health case worker in the Alexander Maconochie Centre (AMC) reported that you are currently considered stable and compliant with treatment, but that you have continued to experience symptoms of your mental illness.
I note that you refused to discuss the offence or your relationship with Paula Conlon with the author of the Pre‑Sentence Report. The author of the Report expressed the opinion that your continued denial and subsequent refusal to discuss your offence indicate limited capacity to accept accountability for the offence and an unwillingness to appreciate the seriousness of your actions and their effects on the victim, her family and the wider community. The author of the Report expressed the opinion that you remain at high‑risk of reoffending while you continue to deny your accountability for this offence and while your illicit substance use is unaddressed.
Mental health
Before turning to the evidence concerning your mental health, I will briefly set out the principles as to how such evidence may be relevant in these proceedings. The fact that an offender suffers a mental illness may be relevant in the following ways:
(a)first, the condition may reduce the moral culpability of the offending conduct as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances and denunciation is less likely to be a relevant sentencing factor;
(b)secondly, the condition may have a bearing on the kind of sentence that is imposed and the conditions in which it will be served;
(c)thirdly, whether general deterrence should be moderated or eliminated as a sentencing consideration by virtue of the condition depends upon the nature and severity of the symptoms exhibited by the offender and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence, or both;
(d)fourthly, whether specific deterrence should be moderated or eliminated as a sentencing consideration by virtue of the condition likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or the date of sentence, or both;
(e)fifthly, the existence of the condition at the date of sentencing, or its foreseeable recurrence, may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health; and
(f)sixthly, where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate the punishment.
The evidence does not suggest that you were obviously psychotic or delusional when you spoke to Lucious Nicholson on the morning of 28 March 2012. You had interactions with a number of people on 28 March and into the morning of 29 March, before you were arrested. None of those interactions suggest that you were floridly psychotic. I am satisfied that you had used methylamphetamine on the night of 28 March 2012. After you were arrested you were taken to the City Watch-House, where a forensic medical officer recommended psychiatric review.
In the course of an interview with the forensic medical officer, you told her that you were hearing voices calling you a wog. The forensic medical officer did not find any objective signs of psychosis during her examination, nor did she observe signs consistent with untreated schizophrenia. As the forensic medical officer was uncertain about your recent sleep history and you were slightly overdue for your antipsychotic medication, she recommended that you be assessed by a psychiatrist before being offered an interview.
On 29 March 2012, you were seen by Mr Peter Shiels, a registered nurse employed in the Belconnen Mental Health Team, who administered an injection of antipsychotic medication. Mr Shiels was your clinical manager from when he commenced at Belconnen Mental Health in April 2011, and as such was aware of your history. When he saw you on 29 March 2012, you described a belief that people were out to get you and wanted to hurt you. You also described auditory and visual hallucinations, although your appearance at the time appeared to be inconsistent with the level of reported symptoms. Mr Shiels testified that in his dealings with you from April 2011 onwards there had been periods when your mental state was disrupted and you were considerably more disorganised than usual and you reported higher levels of psychotic phenomena. You told him that this was during periods when you were using amphetamines. Mr Shiels accepted the proposition put to him by Mr Pappas, your counsel, that a person with an underlying condition of paranoid schizophrenia could suffer short term exacerbations in their symptoms, lasting no more than a day or even a matter of hours. I accept that it is difficult to determine the exact extent to which you were affected by your underlying condition of paranoid schizophrenia on the night of 27 March 2012 by reference to the observations of those who saw you on the following days, and even the observations of those who saw you earlier on 27 March 2012.
At the sentence hearing, two reports from a forensic psychiatrist, Professor Paul Mullen, were tendered. The first report is dated 28 October 2014. Professor Mullen saw you on three occasions over a cumulative period in excess of six hours. The first examination took place on 19 April 2012, the second on 3 March 2014 and the last on 21 October this year. In addition, he had available the extensive records of your contacts with Mental Health Services between January 2001 and May 2012.
Professor Mullen stated that you were difficult to interview on your first meeting in April 2012. You had problems maintaining focus and your utterances tended to drift without discernible connection from topic to topic. Also present was the feature occasionally seen in the schizophrenias of ambivalence. This is not a mixed feeling or shifting perspective of normal ambivalence but a profound conflict between views, feelings and accounts provided by the individual on a range of topics from moment to moment.
Professor Mullen noted your educational and employment history, together with your history of substance abuse. You frankly told Professor Mullen that you loved using drugs because it made you feel normal. You said that particularly on ice it was possible for you to get close to people and be friendly with people. You said that when you were intoxicated you stopped feeling threatened by people all the time.
You told Professor Mullen that you began to hear voices talking to you at about the age of 14 or 15. Later, you began to feel that you were being watched and something was going on around you which was threatening. At the age of 17, you first experienced the television seeming to talk directly to you. Your family became concerned and referred you to a private psychiatrist. That psychiatrist told you to stop smoking cannabis and the problems would go away.
Your first contact with the public Mental Health Service was in January 2001, when you were aged 17, when you took yourself to the emergency department after attempting suicide. You said that you had tried to kill yourself because you were possessed by the spirit of your dead brother‑in‑law, who committed suicide the previous year. The assessment at that time was not of psychosis but of a major personality problem.
Your next contact was on 15 May 2001, following a referral by the police, who were concerned that you were complaining of being in danger, and your family also reported that you had been threatening towards them. You were assessed by a member of the Mental Health Team who noted your report of hearing voices. They also obtained a history of your smoking five joints of cannabis a day. The assessment at that time was one of cannabis‑induced hallucinations.
In September 2001, you were again brought to the emergency department because of threats to kill yourself. You were not considered psychotic.
In April 2002, you saw a psychiatrist who recognised that you were deluded and suffering from hallucinations, and arranged for your immediate admission to the psychiatric unit. You were commenced on an antipsychotic medication, on which you gradually improved, before being discharged after some four weeks with a diagnosis of delusional disorder. You were followed up by the Community Mental Health Team on a regular basis, and you were, in addition, referred for drug and alcohol counselling. You progressed well, but in December 2002 you dropped out of contact with your support services, and despite considerable efforts could not be reconnected.
In July 2003, your family brought you back to the hospital in a disturbed and psychotic state. You were readmitted and placed on a different antipsychotic. After a three-week admission you were discharged to community follow‑up. In October that year, you were noted to be chronically intoxicated and you were admitted for drug detoxification. The diagnosis at that time was changed to drug-induced psychosis. As I understand it, in the light of that diagnosis, treatment with antipsychotics was ceased.
In January 2004, the police again referred you to Mental Health Services. You were assessed, and it was noted that you were not psychotic and did not require medication.
In June 2004, the police brought you to hospital and you were readmitted. You were diagnosed with paranoid schizophrenia and antipsychotic medications were reinstated. You were discharged after a two‑month admission on a community treatment order. It was shortly after your discharge that you assaulted your mother. You continued to receive regular medication and support from the Mental Health Team whilst you were on remand for that offence. You were bailed three months later to Odyssey House for drug rehabilitation. You were discharged from that institution after five months for aggressive behaviour, but this was followed by a relatively long period when you were not abusing drugs and you cooperated with treatment and follow-up. Mental Health Services then discharged you to the treatment of your general practitioner.
Contact with Mental Health Services was re-established, again via a police referral, in 2006. You were admitted to hospital as psychotic and disturbed. A two‑month admission was followed up by the Community Mental Health Team. A period of relative stability followed, when you cooperated with treatment and follow-up. In late 2008, you persuaded your treating psychiatrist to greatly reduce your medication.
Unfortunately, in March 2009, you were again floridly psychotic and once more readmitted to hospital for seven weeks. After that, you were treated in the community, before undergoing a further six‑week admission in June and July 2009.
Professor Mullen noted that by this time the diagnosis had stabilised at paranoid schizophrenia, the features of which were exacerbated by the abuse of amphetamines and cannabis. A period of intensive community support followed, maintaining you in a reasonably stable state, but there were some problems due to your nonattendance for depot medication injections. A subsequent decrease in your medication resulted in you becoming disturbed, and you were readmitted to hospital on 26 August 2011. This was the last admission prior to the death of Paula Conlon.
After release from hospital, you were followed up by the Community Team. Your attendance for treatment and support was somewhat erratic, although you continued to receive your antipsychotic injections. You pressed for a reduction in your antipsychotic medication, which was agreed to. You spoke to your treating clinical psychologist about problems in your relationship with Paula Conlon, and on 24 November 2011 you told him that you feared she was being unfaithful to you.
You took an overdose of antidepressants on 17 January 2012, following which you were briefly admitted for observation. When your depot medication was administered on 31 January 2012, you were noted to be reporting hallucinations.
On 10 February 2012, your brother contacted Mental Health Services, concerned that your mental health was deteriorating. On the same day, police made their concerns known about your mental health. On 18 February 2012, your mother contacted Mental Health Services to express her concerns about your deteriorating mental state. Mental Health Services responded with a series of home visits by Mr Shiels, who managed to see you on 14, 16 and 20 March 2012. He administered your depot antipsychotic on 14 March, with the next injection being due on 28 March.
When Professor Mullen examined you at the AMC on 19 April 2012, he noted that you were in an obviously disturbed state. He described your mood as fluctuating between childish playfulness, marked with giggling and a general silliness, and a puzzled distress with some tearfulness at times. You displayed the ambivalence previously referred to and rambling and inconsequential speech. You reported auditory hallucinations which, at that time, was a single female voice, although you said you had heard both male and female voices in the past. You reported that what you found particularly scary was when the voices seemed to speak your thoughts. You told Professor Mullen that your head had been cracked open when you were 19 and your soul was removed. You described ongoing problems with experiencing both the radio and television talking to you and about you. You said that you believed there were bugs and cameras in your cell recording what you did.
When Professor Mullen next examined you on 3 March this year, you were reasonably settled and presented in an entirely different manner from your previous examination. You remained pleasant, appropriate and well able to express yourself clearly throughout this examination. Some residual disturbances, however, appeared to remain in your state of mind. You told Professor Mullen that you continued to believe that you were being spied upon, although to a lesser extent. The auditory hallucinations still occurred, but were less intrusive. The television and radio no longer communicated with you. You retained some residual fear that you were in danger, but you were unsure from whom. At this time, you had been on regular antipsychotic medication for over a year and had no exposure to drugs or alcohol.
When seen for the third time on 21 August 2014, you remained pleasant, coherent and cooperative. Professor Mullen considered that the disturbances in your state of mind were, however, more marked than in March 2014. At this time, you claimed that you were experiencing voices speaking your thoughts aloud. You felt that you were being experimented upon, but you were unsure by whom or why. You said that you occasionally felt like a spider was inside you and controlling you. You remained on antipsychotic medication and remained drug and alcohol free.
You told Professor Mullen that you had only two relationships prior to meeting Paula Conlon. It appears that both relationships failed because you believed that your partners were being unfaithful to you. You told Professor Mullen that problems began in your relationship with Paula Conlon after about a month when you began to suspect she was having sexual relations with other people. You said that you became convinced that she was cheating on you with your friends and with your brother. You said that you knew she was having sex with at least five men and a woman. The bases of your suspicions, as expressed to Professor Mullen, were clearly irrational. Not long before she died, Paula Conlon believed that she was pregnant. You told Professor Mullen that she miscarried two days before she died and that you were not sure that you were the father.
You told Professor Mullen that in hindsight you believed that your hallucinatory experiences, together with your sense that your thoughts were being interfered with, had become more prominent from late December 2011. You said that you had not been frank with the health workers from the Community Team about your level of symptoms following your last discharge from hospital. You also admitted that your use of illicit drugs, particularly ice, had escalated. You said that on the day of Paula Conlon's death you recalled taking a considerable quantity of ice in addition to using a large amount of cannabis. You also consumed alcohol. You said that your memory of events on that evening was muddled. At your first meeting with Professor Mullen, you denied having killed Paula Conlon, but then gave a confused account of possibly remembering battering her to death. You also spoke of threatening her with a knife because she would not drive you to pick up more drugs. In your subsequent interviews, you denied memories of having harmed Paula Conlon.
Professor Mullen expressed the opinion in his first report that you have a schizophrenic illness. This had an insidious onset before finally becoming obvious when you were 17 or 18 years old. You also have a longstanding problem with the abuse of cannabis, amphetamines and ice. Professor Mullen expressed the view that your drug abuse did not cause your schizophrenia, but it made some features worse and seriously disrupted attempts by Mental Health Services to bring your illness under control. He noted that your claim that drugs and, in particular, ice improved your condition may have some validity, as for those with schizophrenia, often the most distressing symptoms are the inability to relate to others, both because they fear them, and because they cannot grasp the nuances of emotional rapport and effective social interaction. Loss of motivation and loss of the joy of life are also frequent symptoms. Professor Mullen noted that in some sufferers psychostimulants, such as amphetamines, produce temporary relief from such alienation and emptiness. Unfortunately, they also exacerbate features such as hallucinations and delusions, as well as negating the beneficial effects of antipsychotic medication.
Professor Mullen stated that pathological jealousy and delusions of infidelity occur in some 10 per cent of males with schizophrenia. Pathological jealousy is always a dangerous condition, being associated with high rates of both violence towards the partner and suicide, or its attempt, in the sufferer.
Professor Mullen expressed the view that you may well have been too disorganised by psychosis and intoxication at the time of Paula Conlon's death to have retained clear and coherent memories of the events, even in the immediate aftermath. It was his opinion that the delusions of infidelity probably provided the background out of which a violent assault could have emerged. It may not, however, have been such delusional beliefs that directly triggered the assault.
The type of schizophrenia which you suffer is associated with fecklessness and lack of commonsense and self-control, which can lead to impulsive actions, even violent actions, which disregard the likely impact on the victim and on the sufferer. Professor Mullen noted that you spoke vaguely of having threatened Paula Conlon with a knife on the evening that she died because she refused to give you a lift to buy more drugs. He said that it was possible that something as trivial as that could have been the final cause of any attack.
Professor Mullen stated that you are having a more than usually difficult time in prison. You apparently reported to him spending more than 12 of your 20 months on remand in the Crisis Support Unit, where a regime of a 23‑hour day lock down pertains. I note that this was to a certain extent challenged by the Crown. You reported having periods when you are preoccupied with suicide. You also reported difficulty obtaining your medication on time or at all. This was also challenged by the Crown. I have no way of resolving those issues of dispute.
Professor Mullen said that because of your difficulty interacting with others and your constant background of suspicion that you are being spied upon, you often come into conflict with fellow prisoners and prison staff, which can explode into violence. Professor Mullen considered that prison is a damaging environment for those with the type of schizophrenia you suffer.
In a supplementary report dated 30 October 2014, Professor Mullen stated that he had read the Pre‑Sentence Report prepared for your sentence hearing. He expressed the opinion that there is no evidence in the general run of offenders that either accepting responsibility or having insight into their offending is relevant to the risk of reoffending. He suggested that over 30 per cent of those who kill partners have no memory of the killing. He expressed the opinion that the question of your acceptance of responsibility and insight into your offending is irrelevant due to the nature of your mental illness and your likely state of intoxication at the time. He further stated that you are at very high risk of reoffending in some manner were you to be returned to the community today. The factors which he considered relevant to your offending are the nature of your mental illness, your substance abuse, your potential for jealousy and your difficulty considering the implications of your behaviour and therefore applying prudent self-control.
Professor Mullen said that controlling your obvious symptoms of delusions, hallucinations and experiences of control has not been easy, but considers that it is possible. He believes that as you age symptom control should become easier. The same may be said with respect to your substance abuse, although Professor Mullen does accept that you have had extended periods of abstinence in the past. Professor Mullen hypothesises that drugs may become available in the future to block the effect of substances such as amphetamines, but in my opinion this is purely hypothetical and can be given no weight.
Professor Mullen believes that you will need to be under regular medical supervision for the rest of your life. Should you in the future establish another intimate relationship, this should be managed by warning the partner of your history, instituting regular separate meetings with you and your partner to explore any possible signs of jealousy and readmitting you to a closed psychiatric unit for treatment if any such signs emerged.
Professor Mullen expressed the opinion that you could be described as morally disabled by your illness. He noted that rates of violence amongst those with schizophrenia are higher than the general population, with homicide rates 5 to 10 times higher. This, he said, is due as much to the personality changes wrought by the illness as to the delusions and hallucinations. These negative personality changes can be ameliorated by psychological interventions, most of those of proven efficacy being of the cognitive behavioural type. He considered that part of any program of rehabilitation for you should involve clinical psychologists working with you to change attitudes, improve interpersonal behaviour, establish a pattern of considering the implications of your actions and inhibiting your aggressive responses.
Professor Mullen considered that in an ideal world you would be placed for treatment in a secure forensic mental health facility, and you would remain there until it is clear your chances of reoffending in any serious way are low. You would then be followed up by forensic mental health professionals in the community. Professor Mullen found it difficult to say for certain how long it would take to reduce your risk of reoffending, presumably assuming the regime of treatment he suggested, although in his experience at least five years as an inpatient at a secure hospital would be required.
Finally, he expressed the opinion that the risks of killing a second time in those convicted of killing a partner is very low but, unfortunately, it is highest in those who kill whilst in the grips of delusions of infidelity. Even in such cases, however, he considered the risk to be low. The substantial risk in your case, he said, is not of homicide but of more generalised violence.
I found Professor Mullen's reports to be very informative and useful, but the limitations of his reports must be acknowledged. Professor Mullen's opinions concerning your risk of reoffending are couched in general language, and he speaks in terms of comparative risks.
While the risk of you committing a further murder may statistically be low, it is a risk of a catastrophic event, being the taking of the life of another human being. Professor Mullen does not and cannot express an opinion that you will not reoffend in a similar manner in the future. In any event, there is a continuing risk, unquantified by Professor Mullen, of you engaging in non-fatal violence. In his first report, Professor Mullen noted that you have been convicted on a number of occasions for offences of violence, but it is unclear whether he was aware of your tendency to resort to the use of knives when angry.
Of the four factors identified by Professor Mullen as central to your offending, the first two, your mental illness and your substance abuse, have been the subject of attempts at rehabilitation and treatment in the past. Indeed, you were being treated for both at the time of this offence. You have shown progress on those occasions when you are compliant with treatment for your schizophrenia and you avoid the use of illicit drugs. Inevitably, however, you have returned to the use of illicit drugs and you have become noncompliant with your mental health treatment. If that pattern were to be repeated in the future, I see no reason to think that you would not again engage in violence, perhaps with fatal results.
Professor Mullen expresses the opinion that the risk you present to any future partner may be ameliorated by vigilance for signs of jealousy. There is a real question in my mind about how effective such an approach could be. You told Professor Mullen that you had misled those treating you in the past by minimising your reported symptoms. Those who saw you and had dealings with you on 27 March 2012, and on the days thereafter, did not observe a level of symptomatology apparently consistent with that which you described to Professor Mullen. Either you were deliberately exaggerating the level of your symptomatology as at 27 March 2012 when you spoke to Professor Mullen, or you have adapted to your illness to the extent that your appearance and demeanour do not necessarily reflect the true extent of your symptoms. In my opinion, the latter is more likely. In reaching that conclusion, I give significant weight to the fact that in the six weeks prior to the death of Paula Conlon, your mother and brother had both contacted Mental Health Services expressing their concern about your deteriorating health. Whilst neither were particularly credible witnesses during your trial, at the point they expressed their concerns to Mental Health Services they had no reason to lie. Your apparently normal presentation to those who had dealings with you on 27 March 2012 and in the following days suggests that you have the ability to mask the extent of your symptoms and to appear relatively normal to those who do not know you well.
Your lack of frankness about your level of symptoms to those who provide you with treatment and your ability to conceal the true level of your symptoms give me concern for the efficacy of the safety mechanisms suggested by Professor Mullen. In any event, I see no justification for assuming that you will cooperate and participate in a treatment regime such as that suggested by Professor Mullen, even if it is made available to you. Your history of sporadic compliance with mental health treatment and your obvious commitment to the use of illicit drugs makes problematic the proposition that you will comply with appropriate treatment for your underlying schizophrenia and avoid the use of illicit drugs.
Consideration
In summary, I accept that you suffer from a severe mental illness described as paranoid schizophrenia and that you have suffered from that illness since you were 17 or 18. I accept that the effects of that illness are exacerbated by your use of illicit drugs such as amphetamines. I accept that the use of such drugs reduces the effectiveness of medications provided to treat your schizophrenia. I accept that the use of such drugs may, however, alleviate some of the symptoms of your schizophrenia which makes it more likely that you will continue to abuse those drugs. I am satisfied that your willingness to participate in appropriate therapies is questionable.
I am further satisfied that the effectiveness of any suggested therapies cannot be guaranteed, even if you willingly participate, and I am further satisfied that there remains an increased risk of you engaging in violent behaviour and possibly reoffending, as you did on this occasion, especially if you are not effectively treated and if you are not abstinent from illicit drugs.
The question of the extent to which your moral culpability for this offence is reduced by your schizophrenia is difficult to answer. I accept the opinion of Professor Mullen that your schizophrenia is associated with fecklessness, lack of commonsense and lack of self-control, which can lead to impulsive and even violent actions, which may be precipitated by even a trivial event. As such, I accept that you do not have the same level of self-control and the ability to exercise reasoned judgment as a person who does not suffer from the type of mental illness which you suffer. As a consequence, it may be accepted that your moral culpability for this crime is reduced. I am satisfied, however, that you understood the nature and quality of your acts and that what you were doing was wrong when you killed Paula Conlon.
I accept the opinion of Professor Mullen that your mental illness will make incarceration somewhat more difficult for you than for a person not so afflicted. Ordinarily, these are factors that would call for mitigation of sentence consistent with the principles that I referred to earlier.
I am satisfied that you have demonstrated no remorse for killing Paula Conlon. Having observed you throughout the trial, I saw no signs of remorse for what you did, or even signs that you regret the death of Paula Conlon.
It is an accepted principle of our criminal law that the maximum penalty for an offence is only to be imposed in a case that falls within the worst class or category of such an offence. That does not mean that the maximum penalty must be reserved for the worst case that may be conjured by the judicial imagination. It is always possible to think of a worse case.
There must be circumstances of such heinousness and gravity as to call for the imposition of the maximum penalty. In my assessment, there are a number of circumstances that bring this offence into the worst category of murder. The most significant factor is the sustained brutality of the attack on Paula Conlon, as demonstrated by the wounds she suffered. This is not a case where death was occasioned by a single wound. Despite inflicting appalling defensive wounds on Paula Conlon as she struggled for her life, you persisted in your attack, inflicting numerous wounds to her chest and causing her death. I am satisfied that you employed severe force in your attack.
Another factor is that the offence was committed in Paula Conlon's home by a person with whom she was in an intimate relationship. You took advantage of the trust she reposed in you and her love for you to kill her in her own bedroom.
A further factor is that Paula Conlon was helpless and unarmed when you armed yourself with a lethal weapon and attacked her. The pattern of wounds to her body reveals a clear intention to kill her.
In addition, you have a history of violence involving the use of or threatened use of knives.
Whilst your mental illness reduces your moral culpability for this offence, it also means that you present as a continuing danger to the community. Whether that danger can ever be reduced to an acceptable level is presently unclear. It is possible that with time you may accept appropriate therapies such that you may no longer present as an unacceptable risk to the community.
The provisions of the Crimes (Sentencing) Act 2005 (ACT) allow for the Executive to release on licence a prisoner who has been sentenced to life imprisonment. In making that decision, the Executive will have the benefit of a recommendation by the Sentence Administration Board, formulated after it conducts an inquiry. It may be expected that such an inquiry will consider your progress in custody and receive expert opinion.
The Executive, advised by the Sentence Administration Board, will be the body best placed to assess the risk that you may present to the community if you are released. Should you be released, you may be subject to conditions imposed by the Executive, as well as core conditions requiring you to comply with directions given under the Crimes (Sentencing) Act2005 (ACT) or the Corrections Management Act 2007 (ACT), including a condition that you not commit any offence punishable by imprisonment. You may also be directed to undertake testing to detect drug and alcohol use. This regime would apply for the rest of your life. If you were to breach the conditions of your licence, you would be subject to immediate arrest and review of your licence. The Sentence Administration Board may then cancel your licence and return you to custody to serve out the remainder of your sentence.
A sentence of life imprisonment is not to be imposed for the purposes of protection of the public unless the particular offence warrants such a sentence. Whilst your previous history of violence is relevant in determining an appropriate sentence, it cannot be given such weight as to lead to a sentence which is disproportionate to the gravity of the present offence. As the Court of Criminal Appeal in New South Wales recognised in the R v Kocan [1966] 2 NSWR 565, while in ordinary circumstances a sentence may be reduced below that which would otherwise be imposed for an offence committed by reason of the disturbed mental state of the offender at the time of its commission, this will not be appropriate where the offender's abnormal mental condition is a continuing one such that he or she remains potentially a continuing danger to society when at large.
The need to protect the public cannot justify an increase in the appropriate sentence, but it may justify withholding a reduction that would normally attend proof that the offender committed the offence while subject to a disturbed mental state. I take into account the purposes of sentencing as expressed in s 7 of the Crimes (Sentencing) Act2005 (ACT). I also make it clear that I have taken into account the relevant sentencing considerations as set out in s 33 of that Act, although I will not presently refer to them individually.
As the victim impact statements tendered at the sentence hearing testify, Paula Conlon was a loving and much loved mother and daughter. You senselessly killed her in a brutal and frenzied attack. Your actions will impact upon the lives of Paula Conlon's daughters, her parents and her family members and friends for the rest of their lives. The just and appropriate sentence for your crime is one of life imprisonment.
Sentence
Aleksander Vojneski, for the murder of Paula Conlon on 27 March 2012, I sentence you to life imprisonment.
| I certify that the preceding ninety-three [93] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 2 December 2014 |