R v Wicks

[2009] NSWSC 266

CITATION:	R v Wicks [2009] NSWSC 266
HEARING DATE(S):	3 April 2009
JUDGMENT DATE :	24 April 2009
JUDGMENT OF:	James J
DECISION:	For the crime of murdering Gayle Wales - sentenced to a non-parole period of 15 years commencing on 5 February 2007 and expiring on 4 February 2022 and a balance of the term of 5 years commencing on 5 February 2022 and expiring on 4 February 2027. The earliest date on which prisoner will be eligible for release on parole will be 4 February 2022
CATCHWORDS:	CRIMINAL LAW — Sentencing — murder
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act Crimes Act
CATEGORY:	Sentence
PARTIES:	Regina WICKS, Steven John
COUNSEL:	R Hoenig - Crown M D Austin - Accused
SOLICITORS:	S Kavanagh (Solicitor for Public Prosecutions) S O'Connor (Legal Aid Commission of NSW)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JAMES J

FRIDAY 24 APRIL 2009

2008/2739 R v STEVEN JOHN WICKS

REMARKS ON SENTENCE

1 HIS HONOUR: on 7 November 2008 Steven John Wicks pleaded guilty to a charge that on 5 February 2007 at Busby he murdered Gayle Wales. The prisoner had been arrested on 5 February 2007 and his trial on the charge of murder had been fixed to commence on 22 September 2008. The night before the trial was fixed to commence the prisoner made an attempt to take his own life and as a result of this attempt at suicide the trial was adjourned. At the prisoner’s own request he was arraigned on 7 November 2008 and he then pleaded guilty.

2 The maximum penalty for the offence of murder is imprisonment for life. There is a standard non-parole period of 20 years.

3 The evidence on behalf of the Crown in the proceedings for the sentencing of the prisoner consisted of a statement of agreed facts, a photograph of the knife used by the prisoner to kill the victim, the prisoner’s criminal history, the custodial history of the prisoner who had been continuously in custody referable to this offence from 5 February 2007 and a victim impact statement by Ms Vickie Wales, a sister of the deceased, who read the victim impact statement.

4 The evidence on behalf of the prisoner consisted of three reports by Dr Bruce Westmore forensic psychiatrist, dated 15 February 2008, 8 October 2008 and 19 January 2009, and a report by a psychologist Mr Peter Champion. The prisoner did not give evidence in the proceedings on sentence and there was no pre-sentence report. There was no oral evidence in the proceedings on sentence.

5 I will now set out the statement of agreed facts. I was informed at the hearing that, where the statement of agreed facts contains an assertion by the prisoner, I should proceed on the basis that what the prisoner asserted can be taken to be true.

Statement of Agreed Facts

1. On the night of the 4th of February 2007 just before midnight neighbours in the vicinity of 11 Hereford St Busby heard a lady crying out for help and screaming that someone was going to stab her and she was about to be killed. She wanted someone to call the police.

2. Daniel Campos resides at 9 Hereford St Busby i.e. next door to where the deceased died. At about 12pm he heard a loud scream. A female voice which he didn't recognise screaming “help me, help me; he is trying to kill me. Let me out, let me out.”

3. He heard the offender, Steve Wicks, who he knew from living next door for 12 years saying “calm down, calm down, please come inside with me”. He also heard the female voice say "he's got a knife. He's going to stab me." He heard banging and called 000.

4. The phone call he made was recorded.

5. Jeremy London lives at 52 Aberdeen Rd Busby and his backyard is very close to the rear yard of No 11 Hereford St as the two streets are almost parallel. He heard a girl scream “help someone call the police”.

6. He heard a male voice say “shut up” repeatedly.

7. Jennifer London, Jeremy's mother, heard a woman screaming “help me help me” and “get away from me help me”.

8. Matthew Robinson who lives at 6 Hereford St heard a female scream “help me help me” and then “aargh”.

9. As a result of the 000 call police were despatched and the first officers on the scene included Constables James Murray, Bede Burgess and others. They found the deceased lying on her back next to the colour bond garage. Her body was lying between the garage very near a door that led into it and the fence which surrounded the swimming pool in the rear of the property. Police noted what appeared to be stab wounds to her throat and abdomen. On finding the body of the deceased other police were summonsed and the area treated as a crime scene.

10. An ambulance was called and an ambulance officer Rick Canfield and his partner arrived and attempted to revive Ms Wales but she was dead. Her clothing and other personal items such as her mobile phone were collected as exhibits and later the body was taken to the morgue for an autopsy.

11. Police searched the area including calling out “Police come out” but did not find the offender, or anyone else. Unbeknown to them he had run into the garage and hidden in a cupboard where he remained for the rest of the night, undetected even whilst police investigated the death of Ms Wales.

12. Const Burgess did find a long serrated edged knife, like a bread knife just inside the door to the garage and he noticed blood on the blade. It was photographed (no.58) where it lay and was later measured and found to have a 30 cm blade. The crown says this is the knife used by the offender to inflict the wounds on Ms Wales that caused her death.

13. Police obtained a search warrant and searched the main house but nothing which relates to this case was located. Apparently his parents were away from the house, down the coast for the weekend, and neither the offender nor the victim entered the house proper, at all that night.

14. Various police officers collected fingerprints and took swabs of the blood stains observed at the scene and collected exhibits for later testing.

15. Much later, at about 9.30am. Lisa Gorton who was attached to the forensic imaging section and who was taking digital images of the scene was startled by a male, the offender, coming out of the cupboard. She alerted police officers at the scene and the offender, who had left the garage was arrested, as he tried to flee the scene.

16. He was taken back to the Green Valley Police station, cautioned, photographed and interviewed by Det. Snr Const. Krai. During that interview the offender admitted he “stabbed” the victim “more than once”.

17. According to the version he gave in his recorded interview, on the previous day, Sunday the 4 of February 2007 he had spent the day pretty much as he had many days before it, living in the garage which had been converted into his living quarters, at the rear of his parent's house situated at 11 Hereford St Busby. He was then 47 years of age.

18. During the day he drank about 5 beers. After lunch he'd taken some temazepam tablets which had been prescribed for him. Later that day he went down to the local shops and purchased cat food and a bottle of sherry. (These purchases have been independently verified by reference to the offender's bank records).

19. He watched cricket in the garage on his TV and shortly before midnight there was a knock on his door. He wasn’t expecting anyone.

20. He answered the door to Gayle Wales, a woman approximately 37 years of age who he told police he had met when he was in rehabilitation about 10 years earlier. He knew and referred to her as "Junior",

21. According to his version of events as he outlined to police, since their initial meeting he'd seen her around and about two weeks earlier and she had sold him some “serapax” for $20 and borrowed $30 from him. He hadn't worked in years but was in receipt of a disability pension, He said he'd seen her on one other occasion since buying the tablets and then on this night she was at his door wanting to sell him more tablets.

22. The police did not find any drugs on her or on the accused when he was arrested. Nor did the police find any money on the deceased or any loose tablets in the garage.

23. Police found prescription bottles with his name on them and by searching records from local pharmacies and Doctors the police can say he was regularly prescribed drugs which cost a few dollars for 25 yet he says he was paying $20 for 4 serapax. Anyway that is what he says was the cause of the disagreement between himself and the deceased.

24. In the ERISP Mr Wicks says he was upset by the quality of the drugs she'd sold him earlier and was convinced they were not serapax. She wouldn't admit they were “bodgy”.

25. An argument between them erupted and by his own admission he “slapped or punched her" and "she didn't take too kindly to being struck like that.” He says when he slapped her “it drew a little bit of blood from her lip”.

26. Mr Wicks says she made threats saying “that's it, you're dead, I'm going to get people to get you” although he says she didn't have a weapon or anyone with her.

27. Mr Wicks then picked up a serrated bread knife to scare her and says she grabbed the blade and a struggle followed. He got the knife back and in his words "just totally lost it".

28. He was asked by police whether when they were struggling on the ground she screamed out for help and he replied “Yeah that's obviously why the police were called.”

29. When asked whether he believed after stabbing her she was still breathing he said “Yes” He was then asked whether at any stage did he try to render her first aid or assistance he replied “No, no, there was no time.. just as it happened I took four steps, five steps and I could see the lights of the police car...out the window.”

30. He then hid in the cupboard where he remained until letting the door go about 9 hours after stabbing Ms Wales.

31. Dr Dianne Little, a forensic pathologist, examined the body at Westmead on 7 February 2007.

32. Dr Little’s opinion is that the cause of Ms Wales’ death was directly attributable to stab wounds to the neck, chest and abdomen.

33. She also noted a number of other wounds which she describes as incised wounds which were present on both of the deceased’s hands, some of which she describes as “defence type wounds”. One was to the deceased’s thumb which nearly severed it from her hand.

34. In summary several of the stab wounds were sufficiently deep and so placed as to result in death. In Dr Little’s opinion several others would have caused serious injury.

35. The offender has been in custody since the day of his arrest being 5 February 2007 a period of 2 years and 2 months (minus 2 days to 03.04.09). The offender was to stand trial for murder on 22nd of September 2008 however attempted to take his own life on the night preceding his trial. The offender entered his plea of guilty to murder on 7 November 2008 when he was re-arraigned at his request.

6 The prisoner’s criminal history contains some offences of possessing or using a prohibited drug, an offence of assault for which he was sentenced in 1985, an offence of stealing and an offence of assault occasioning actual bodily harm in 1999. For most of the offences the only penalty imposed was a fine and for none of the offences was the prisoner sentenced to imprisonment. The prisoner’s criminal history prevents a finding in his favour of previous good character but is otherwise not relevant to sentencing him for the present offence.

7 The prisoner’s custodial history contains an entry that in April 2008 the prisoner failed to pass a urine test but an explanation for this failure was advanced which did not involve the use by the prisoner of a prohibited drug and I am prepared to accept the explanation. The prisoner’s custodial history has otherwise been unremarkable.

8 The victim impact statement describes the loss from the death of the deceased suffered by the victim’s sister, the victim’s sister’s children and the victim’s own daughter who was only six years old at the time of her mother death.

9 Some of the subjective circumstances of the prisoner are described in the statement of agreed facts and some can be extracted from Dr Westmore’s reports and Mr Champion’s report.

10 In par 4 of his report dated 8 September 2008 Mr Champion said:-

“Steven Wicks is a 48 year old single man, living alone in a garage at the home of his parents at the time of the alleged offence. He was apparently in receipt of disability benefits as a result, he indicated, of long-term drug addiction and anxiety. He indicated that he has not worked since he was about 30 years of age. He gives a history of long-term substance abuse with addiction/dependency”.

11 Elsewhere in the report Mr Champion recorded that the prisoner had obtained a Higher School Certificate and had gained entry to a degree course in engineering at the University of New South Wales. However, he had not completed the first year of the course. He subsequently obtained a traineeship with the Defence Department and gained a qualification as a technical officer in electronics. He was in employment for a period of about 12 years.

12 As I noted earlier, three reports by Dr Westmore forensic psychiatrist were admitted into evidence in the proceedings on sentence.

13 Dr Westmore’s first report dated 15 February 2008 was based on a clinical interview of the prisoner on 13 February 2008, when the prisoner had already been in custody for about a year. The prisoner told Dr Westmore that he was pleading not guilty to the charge of murder on the grounds of self-defence and he gave an account of the confrontation between himself and the deceased according to which the deceased had succeeded in taking the knife from the prisoner and the prisoner had been in fear that the deceased would stab him with the knife.

14 Under the heading “Drug and alcohol history” Dr Westmore recorded that the prisoner said that he had been an alcoholic for about two years, consuming a large bottle of sherry each day; that he had started using cannabis at the age of 15 years and heroin at the age of 17 years, although he had ceased using heroine; that he had been on methadone for more than 20 years; and that he had been using prescription drugs for as long as he could remember.

15 Under the heading “Psychiatric diagnostic issues” Dr Westmore stated:-

“Substance abuse (cannabis and heroin)
Prescription medication abuse (minor tranquilisers)
Alcohol abuse
Probable mood disorder with symptoms of anxiety and depression
………..
He has hepatitis related liver problems, hypertension and hypercholesterolaemia
………..
This man’s general level of functioning appears to have declined over the last few years. He was socially isolated, unemployed and he was abusing medication, cannabis and alcohol”.

16 In this first report Dr Westmore expressed the opinion that the prisoner was fit to be tried and did not have a psychiatric defence to the charge of murder.

17 Dr Westmore’s second report dated 8 October 2008 was based on a clinical interview on 3 October 2008, that is after the prisoner’s attempt at suicide.

18 The prisoner explained to Dr Westmore that he had attempted to commit suicide, “after I received the autopsy report (which he had never seen before) and there was just a whole lot of injuries (to the victim) I couldn’t account for”. The prisoner told Dr Westmore that he was dumbfounded by the autopsy report, that he could not remember inflicting on the deceased the injuries described in the autopsy report and that he felt remorseful and guilty about what had occurred.

19 In his second report Dr Westmore expressed the opinion that “if his drug problem is treated, then his risks of re-offending in such a serious way again are very likely to be negligible to non-existent”.

20 In Dr Westmore’s opinion, the diagnoses he had made in his earlier report remained valid. As to the attempted suicide Dr Westmore said:-

“Mr Wicks has in the context of acute stress engaged in what I understand was a serious act of self-harm. He said the thoughts about harming himself occurred a few days prior to the incident although he had had some thoughts of a similar type previously since being placed into custody. The precipitant for his actions appears to have been his reading of the autopsy report and him coming to the view that he would need to change his plea from not guilty on the basis of self-defence to guilty to the charge of murder.
The magnitude of all of that appears to have overwhelmed him.
He has since been placed into a secure cell into the Acute Care Unit of Long Bay Prison. He has been treated with an anti-depressant and he is seeing a psychologist, presumably on a regular basis”.

21 Dr Westmore’s third report dated 19 January 2009 was based on a clinical interview on 14 January 2009, that is after the prisoner had pleaded guilty to the charge of murder. Dr Westmore had been asked to provide an opinion as to whether at the time of the commission of the offence there were any psychiatric or psychological mitigating factors.

22 Dr Westmore recorded in his report that he had been told by the prisoner that after 8 o’clock in the evening of 5 February 2007 the prisoner had consumed two-thirds of a bottle of sherry, had taken 7 or 8 temazepam tablets and was smoking cannabis.

23 In this third report Dr Westmore stated that the diagnoses made in his original report remained valid. Dr Westmore expressed the opinion that:-

“It is likely at the time of the commission of the offence Mr Wicks was affected by drugs and alcohol. He denies, but cannot really remember, whether he was paranoid on the night of the incident. His explanation as to why he and the deceased argued does not appear to be psychotically based … Mr Wicks also thought he may have been depressed at the time of the incident and certainly his drug and alcohol abuse is likely to have effected his mood adversely.
………….
Generally Mr Wicks presents as a subdued, sad, sombre and possibly depressed man”.

24 I will now quote or summarise parts of Mr Champion’s report.

25 On an intelligence test administered by Mr Champion the prisoner achieved a score in the superior range. Mr Champion considered that the prisoner had a longstanding history of generalised/social anxiety and that the “overall impression is of a socially withdrawn and blunted personality”.

26 In par 23 of his report Mr Champion said:-

“In sum Mr Wicks is a man of significant intelligence who presents with a longstanding history of polysubstance abuse with addiction/dependency. He gives a history of anxiety problems and has chosen to live a somewhat isolated life on his own, having in many ways withdrawn from the world. I would not be surprised to find that there is an underlying tendency to mood disorder. There are no obvious indications for formal psychiatric treatment, unless for instance his mood issues worsen. He might benefit from some CBT (cognitive behaviour therapy) type treatment if this were available to him.”

27 The prisoner told Mr Champion that, apart from the sherry the prisoner had drunk in the evening of 5 February 2007, he had earlier that day drunk a number of small bottles of beer, had taken a dose of methadone, had smoked cannabis and had taken temazepam tablets.

28 In par 36 of his report Mr Champion said in part:-

“As indicated above Mr Wicks spoke of consuming alcohol, prescription medications and cannabis in the period leading up to the incident which saw him charged. While he has been an abuser of these substances for some time, and could probably be expected to have developed some level of tolerance for these substances, one would surmise that he would still have been substance affected, in terms of his judgment being impaired, and potentially his personal control.”

29 I accept as accurate the history given by the prisoner to Dr Westmore and Mr Champion which I have referred to and I accept the opinions expressed by Dr Westmore and Mr Champion which I have quoted or referred to.

The submissions of the parties
For the Crown

30 It was submitted that it could be inferred from the report of the pathologist who performed the post-mortem examination and particularly from the findings by the pathologist of multiple stab wounds to the victim’s body and defensive injuries to the victim’s hands and from the evidence of neighbours about the victim’s screams for help that the prisoner, using a knife, had made a sustained attack on the victim. It was submitted that, having regard to the sustained nature of the attack and the injuries to the victim, it would make little difference to the sentence whether I found that the prisoner had an intent to kill or merely an intent to inflict really serious bodily injury.

31 The aggravating factor in s 21A(2)(c) of the Crimes (Sentencing Procedure) Act, that the offence involved the actual use of a weapon, was clearly present.

32 On the other hand, it was conceded by the Crown that a number of mitigating factors were present, that the offence was not planned (s 21A(3)(b)); that on the prisoner’s account, which could be accepted, the prisoner was to some extent provoked by the victim (s 21A(3)(c)), even though the circumstances fell far short of providing a partial defence of provocation under s 23 of the Crimes Act that the prisoner did not have any record of previous convictions of any significance (s 21A(3)(e)); and that the prisoner had pleaded guilty (s 21A(3)(k)). However, the plea of guilty had been a late plea and its utilitarian value was limited.

33 It was submitted that I should find that the offence fell in the middle of the range of objective seriousness for offences of murder and that, notwithstanding any matters referred in the reports of Dr Westmore and Mr Champion, the prisoner was a suitable vehicle for a sentence which would give effect to the sentencing purpose of general deterrence.

For the prisoner

34 It was submitted that the prisoner’s attack on the victim was not pre-meditated or planned; that the use of the knife by the prisoner had been opportunistic; that the prisoner’s capacity to exercise judgment and control over his actions had been adversely affected by the drugs and alcohol he had ingested; that there was some provocation in that the prisoner believed that the victim had supplied him with prescription drugs of poor quality; and that there had been some loss of self-control on the part of the prisoner. It was submitted that I should find that the offence fell below the middle of the range of objective seriousness for offences of murder.

35 It was conceded that the plea of guilty was a late plea and should attract a discount of only 10 per cent for its utilitarian value.

36 It was submitted that I should find that the prisoner had shown remorse. After the prisoner had become aware, for the first time, of all the injuries he had inflicted on the victim, he had made a serious attempt to commit suicide and had then changed his plea to a plea of guilty. The prisoner had expressed his remorse to Dr Westmore.

37 It was also submitted that I should find that the prisoner has good prospects of rehabilitation.

Decision

38 The prisoner used a knife to make a sustained attack on the victim, inflicting lethal stab wounds to the neck, chest and abdomen. I am satisfied from the nature of the weapon, the number of injuries sustained by the victim and the location of those injuries on the victim’s body that I should find that the prisoner had an intent to kill the victim.

39 On the other hand, factors tending to mitigate the objective seriousness of the offence were that the offence was quite unpremeditated and unplanned, the victim appearing unexpectedly late at night at the prisoner’s garage; the prisoner felt some resentment for the victim because of what he believed had been the poor quality of prescription drugs she had supplied to him; the prisoner’s ability to exercise judgment and control were to some degree affected by the alcohol and drugs he had ingested that day before the victim arrived outside his garage; there was a loss of self-control on the part of the prisoner; and the prisoner’s use of the knife was quite opportunistic, the knife happening to be in the garage.

40 I would assess the level of objective seriousness of the offence as being a little below the middle of the range of objective seriousness for offences of murder.

41 I consider that the prisoner’s plea of guilty and my finding that the offence was below the middle of the range of objective seriousness for offences of murder are reasons for departing from the standard non-parole period, although I continue to have regard to the standard non-parole period as a reference point or guide. It is necessary for the sentence to be imposed to give effect to the sentencing purpose of general deterrence, as well as the other purposes of sentencing.

42 I find that the prisoner has shown remorse, that he is unlikely to re-offend and had good prospects of rehabilitation, that he has no significant criminal history and that a discount of 10 per cent should be allowed for the utilitarian value of the plea of guilty.

43 I was not asked to find, and I do not consider that I should find, special circumstance within s 44(2) of the Crimes (Sentencing Procedure) Act.

44 The sentence will commence from 5 February 2007, the date on which the prisoner was arrested and from which he has remained in custody.

45 Taking into account the objective facts of the offence and the subjective circumstances of the prisoner, the relevant provisions of the Crimes (Sentencing Procedure) Act and general principles of sentencing, I consider that I should sentence the prisoner as follows:-

Steven John Wicks stand up.

For the crime of murdering Gayle Wales I sentence you to a non-parole period of 15 years commencing on 5 February 2007 and expiring on 4 February 2022 and a balance of the term of 5 years commencing on 5 February 2022 and expiring on 4 February 2027.

The earliest date on which you will be eligible for release on parole will be 4 February 2022.

**********