R v Wade

[2013] NSWSC 1092

Supreme Court

New South Wales

Medium Neutral Citation:

R v Wade [2013] NSWSC 1092

Hearing dates:

7 June 2013

Decision date:

05 August 2013

Before:

Latham J

Decision:

The applicant's sentence ought be re-determined. I specify a term of imprisonment of 36 years to date from 13 August 1988, expiring 12 August 2024. I specify a non- parole period of 26 years, expiring 12 August 2014.

Earliest date entitled to be considered for release 13 August 2014.

Catchwords:

SENTENCE - application for redetermination of life sentence - murder and sexual assault of child - top of the range of murder - low to medium risk of re-offending - sentence re-determined

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Sentencing Act 1989

Cases Cited:

R v Rees NSWCCA 22 September 1995 (unreported)

Category:

Sentence

Parties:

Regina - (Crown)
Douglas James Wade - (Applicant)

Representation:

Counsel
MM Cinque - (Crown)
J Stratton SC - (Applicant)
Solicitors
Solicitor for the Director of Public Prosecutions - (Crown)
Legal Aid NSW - (Applicant)

File Number(s):

1998/93

Judgment

NON-PUBLICATION ORDER PLACED ON NAME OF VICTIM AND ANY other NAME OR  INFORMATION CAPABLE OF IDENTIFYING HER

1. The applicant, Douglas James Wade, was convicted after trial of the murder of 22 month old JC on 13 August 1988. Justice Finlay imposed a life sentence on 20 September 1989. The applicant was also sentenced to 10 years imprisonment for the sexual assault of the child. This latter sentence has expired.

1. The applicant is eligible to make an application for the redetermination of his sentence, pursuant to s 44 and Schedule 1 of the Crimes (Sentencing Procedure) Act 1999. The applicant originally filed an application for determination of his life sentence under s 13 A of the Sentencing Act 1989 on 16 August 1996. The application was listed for hearing on 16 February 2001 but was withdrawn 10 days prior to the hearing.

The Offences

1. The circumstances surrounding the commission of the offences are as follows.

1. The applicant was born in Tumut and left school at the age of 16. He had various jobs after leaving school mainly of an agricultural nature. He is a single man with no children, never having married.

1. In 1988 the applicant was working as a shearer in the Tumut area. He formed a relationship with MC the mother of the victim. MC worked as a casual bar steward at a local club. The applicant stayed overnight at MC's premises in Tumut from time to time and babysat MC's children. The victim and her older brother were both under five years of age.

1. In May 1988, bruises were observed on the victim's stomach, over the outer aspect of both thighs and over her vulva. In June 1988 bruises were seen on both sides of the victim's face, characteristic of slap marks left by an adult hand. There were also multiple bruises around the lateral thighs and both buttocks.

1. On 13 August 1988 shortly before 7:30 pm, MC went out with friends leaving the applicant to look after her children. When she returned 20 minutes to half an hour later, the applicant said to her "Get in here quick ... It's JC, I hit her and she hit her head on the floor". The applicant later indicated that he had hit the child with a backhand motion. An ambulance was called.

1. The child's death occurred at about 8:50 pm. The examining doctor noted multiple bruises, including bruising to the right outer lip of the labia. There was also bruising to the hood of the clitoris and blood in the right side of the clitoris. A forensic pathologist who performed a post-mortem examination found multiple bruises and injuries to the vaginal area of the victim which could be described as recent fingernail injuries.

1. The applicant told the arresting police that he had hit the child in the stomach by either an open fist or a closed fist. He said that it was something that he did on the spur of the moment. The child was playing up and the applicant hit her "with a backhand" and she fell back on the floor and hit her head. The applicant expressed contrition for striking the child both in the course of the police interview and at trial in the course of a dock statement. However, the applicant has always denied sexually assaulting the child.

1. Obviously, there were significant aggravating circumstances. The victim was a very young child, murdered in her own home, while she was in the care of the applicant. She was sexually assaulted by him shortly prior to her murder and had been physically assaulted by the applicant in the months leading up to her death. The applicant continues to refute any responsibility for the commission of the sexual assault upon the child and the extensive bruising indicative of multiple prior assaults. The applicant claimed that he had only ever hit the child once on the nappy prior to the night of her death.

1. At trial, the child's death was attributed to haemorrhage following a rupture of the colon, the duodenum and the liver. That evidence was consistent with many blows to the child's stomach with considerable force. A "parchment abrasion" to the child's thigh was inflicted after the injuries to the abdomen and was consistent with having been caused by the edge of a shoe.

1. Recent haemorrhage and laceration was also present on the right side of the child's clitoris and recent bruising was also present in its more distal extension. The laceration was a very recent injury which showed no healing characteristics. The bruising to the right side of the labia minora and the circumference of the hymen indicated digital manipulation or interference or pressure.

1. The applicant's conviction following trial in the absence of any mitigating circumstances mandated the imposition of a life sentence at that time.

The Applicant's Criminal History

1. The applicant was born on 20 February 1963 and is presently 50 years of age. He has been in custody for the past 25 years. The applicant has prior convictions for one count of stealing, four counts of forgery and four counts of uttering. These matters were dealt with summarily on 5 August 1982. The applicant received a two-year good behaviour bond on the stealing charge and a fine for each of the other charges.

1. The applicant has no convictions for offences of violence or sexual offences, other than those that are the subject of the application.

The SORC reports

1. The Serious Offenders Review Council (SORC) prepared a report on 20 February 1997 and supplementary reports on 30 January 2001 and 20 March 2012.

1. During the applicant's incarceration, he has been convicted of four prison disciplinary offences, all of them minor. The last of them was committed in July 1996. They consist of unauthorised property (1997), threatening language (1995), escape article (1992) and damage property (1991).

1. The applicant was originally classified A2 following sentence. In August 1994 the Council recommended that the applicant be transferred to Cooma Correctional Centre with a B classification, noting the applicant's good reports and the availability of the sex offenders program at Cooma.

1. In December 1996, it was noted that the applicant's attitude to work had improved. He was reportedly evasive in discussions of his previous significant relationships and his failure to take responsibility for his offences indicated that limited progress was being made with respect to his personal rehabilitation.

1. The applicant's overall conduct and general performance was deemed satisfactory although there was little evidence that he had addressed his offending behaviour.

1. In 1999 to 2000, the applicant continued to have good custodial reports. A report of 8 August 2000 from a senior psychologist noted the applicant's continued denial of the sexual offence. The applicant did not present with an overt personality disorder, mental illness or psychopathy which would prevent placements in a less restrictive environment.

1. The applicant was in Junee Correctional Centre with a B classification until 2010. In a report of 16 November 2007, Prof Greenberg noted that there were no reasonable grounds to believe that the applicant suffered from a mental illness, mental disorder or developmental disability. The applicant was suffering from panic attacks. The applicant did not appear to have an antisocial personality disorder and was still reluctant to acknowledge his behaviour during and immediately before the commission of the offences. Dr Greenberg thought that the applicant could not "accept the enormity and gravity of this event and is in partial denial".

1. A report of 28 January 2008 assessed the applicant's risk of re-offending as being low, with a low to moderate risk of sexual re-offending. At that stage the applicant was considering a referral to a sex offender program.

1. In April 2010 he was reclassified to C1 in advance of undertaking a treatment program. He commenced that program on 9 August 2011 and completed it on 28 February 2012. In September 2011 it was recommended that he remain in C1 classification.

1. The report of the treatment program described the applicant as an active participant who was consistently attentive and contributed useful comments and feedback. He appeared to have a good understanding of the material. The applicant did not display any significant social or psychological factors. He was regarded well by his custodial work supervisor and possessed good general coping and assertiveness skills. The report went on to note that the applicant would need the support and guidance of family, friends and relevant professionals, if released from custody. His immediate family is supportive and has offered to provide him with both accommodation and employment on his release.

1. The applicant relies upon a report from Dr Westmore of 15 October 2012. Dr Westmore generally agreed with Prof Greenberg's opinion. Dr Westmore regarded the absence of any long-term stable intermittent/emotional relationships at the time of the offending as a significant factor. Dr Westmore thought that the offence appeared to be of an impulsive type suggesting a low frustration tolerance at that particular time in the applicant's life.

1. Dr Westmore noted that there were some potential problems associated with the applicant's denial of the sexual offence. Nevertheless, Dr Westmore thought his continued denial of the sexual offence should not become a primary issue when considering his risks of sexual re-offending. Dr Westmore described the applicant's risk of re-offending in the low/moderate range and probably at the lower end of that spectrum. The principal negative risk factor was thought to be the absence of any significant previous intimate/emotional relationship.

1. Dr Westmore considers that it is absolutely essential that the applicant remain under psychological and psychiatric care on his return to the community, if that should occur. The applicant's institutionalisation will present a challenge to his capacity to settle into long-term accommodation and to obtain employment. The applicant's senior counsel submitted that a finding of special circumstances could address the applicant's need for extensive supervision.

The Previous System of Release on Licence

1. As was explained in R v Rees NSWCCA 22 September 1995 (unreported), prior to the introduction of s 13A of the Sentencing Act 1989, a person sentenced to life imprisonment was eligible to be released on licence under s 463 Crimes Act 1900. Section 13A required a Court considering a redetermination of a life sentence to have regard to that pre-existing regime. Section 13A is the forerunner of Schedule 1 to the Crimes (Sentencing Procedure) Act. Chief Justice Gleeson (Grove and Simpson JJ agreeing) noted that :-

Section 13A is part of a wider scheme of legislation aimed at achieving what has been described as truth-in-sentencing. The old system of release, by executive action, on licence, of prisoners ostensibly sent to prison for life by judicial decision, was one aspect of the previous regime thought to require legislative attention. Section 13A empowers a re-determination of sentences to alter previously indeterminate life sentences to sentences involving minimum and additional terms. The court is not obliged to make such a re-determination and, just as the current sentencing legislation permits a judge to sentence a prisoner convicted of murder to penal servitude for life (that is, until the prisoner dies) there have also been cases where judges have refused to impose determinate sentences under s13A (e.g. Crump v The Queen (1995) 69 ALJR 570). The legislation potentially affects the custodial position of persons currently serving sentences. Section 13A gives such persons the right to seek from the court a discretionary decision, and s13A(9) requires the court, by paragraph (a), to have regard to a certain matter and, by its concluding words, to have regard to any other relevant matter. The role of the court is to exercise its discretion judicially, as directed by the legislation.

Second, as has been pointed out in other cases (e.g. R v Crump, CCA unreported, 30 May 1994) release on licence is not the same thing as release on parole, and it is eligibility for release on parole that is affected by a minimum term. Licences were often subject to stringent conditions, and were revocable. Some licences were revoked for mere failure to report. Some offenders who were "released on licence" were, in truth, released to a psychiatric institution.

Third, an examination of the available details of offenders who were released on licence reveals that generalizations about mean or average figures as to time actually spent in custody can involve misleading over-simplification.

Other Relevant Matters

1. The mother, brother and grandmother of the victim continue to grieve over her loss. Each anniversary of her birth and death is painful. Not surprisingly, her family have been deeply affected by the circumstances of her death. Those effects are ongoing. It is understandable that they would wish the life long incarceration of the applicant, given that they have been forever deprived of a daughter, a sibling and a granddaughter.

1. The fact remains that the applicant has served 25 years of a life sentence. The salient question is whether that period of incarceration adequately reflects the objective gravity of the murder offence. A non-parole period set by the Court ought be the minimum term, having regard to all the circumstances of the offence, according to the dictates of justice.

1. As the matters to which reference has been made demonstrate, the victim's death was brought about by severe blunt force trauma, certainly of much greater severity than the applicant has acknowledged. In that respect his remorse is qualified. The intentional infliction of such violence on a very young child is conduct of the most reprehensible kind. It ranks this offence towards the top of the range for murder offences.

1. As against that, and with the benefit of being able to assess the applicant's progress towards rehabilitation, he is considered a relatively low risk in terms of re-offending and he has support within the community.

1. In all of the circumstances, I am of the view that the applicant's sentence ought be re-determined. I specify a term of imprisonment of 36 years to date from 13 August 1988, expiring 12 August 2024. I specify a non- parole period of 26 years, expiring 12 August 2014. The finding of special circumstances reflected by the non-parole period allows for an extended period of supervision and conditional liberty. Accordingly, 13 August 2014 is the earliest date upon which the applicant may be considered for release.

Decision last updated: 15 August 2013