Regina v Adam Patrick Owens

[2008] NSWSC 1375

CITATION:	Regina v Adam Patrick OWENS [2008] NSWSC 1375
HEARING DATE(S):	3 November & 5 December 2008
JUDGMENT DATE :	19 December 2008
JURISDICTION:	Common Law
JUDGMENT OF:	McCallum J
DECISION:	The offender is sentenced to imprisonment with a non-parole period of 17 years commencing on 5 March 2007 and a balance of term of 6 years. The earliest date on which the offender will be eligible for release on parole is 4 March 2024. The full term of the sentence will expire on 4 March 2030.
CATCHWORDS:	CRIMINAL LAW - sentence - murder - plea of guilty - offence within mid-range - consideration of aggravating and mitigating factors
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CATEGORY:	Principal judgment
CASES CITED:	Apps v R [2006] NSWCCA 290 Knight v R [2006] NSWCCA 292 R v Barbetta [2008] NSWSC 688 R v Christov (No 2) [2006] NSWSC 1179 R v Merritt [2004] NSWCCA 19 R v O’Connor [2008] NSWSC 1297 R v Previtera (1997) 94 A Crim R 76 R v Thomson; R v Houlton (2000) 49 NSWLR 383 R v Way [2004] NSWCCA 131; 60 NSWLR 168
PARTIES:	Regina Adam Patrick Owens
FILE NUMBER(S):	SC 6621/08
COUNSEL:	Mr R Hoenig (Crown) Mr R Kaufmann (Sol) (Offender)
SOLICITORS:	Director of Public Prosecutions Crimlaw (Australia) Pty Ltd

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCALLUM J

FRIDAY 19 DECEMBER 2008

6621/08 REGINA v ADAM PATRICK OWENS

JUDGMENT

1 HER HONOUR: Adam Patrick Owens pleaded guilty to the murder of his mother, Doris Owens, when he was arraigned on the date fixed for trial. He asked through his solicitor to be sentenced that day and sought to put no mitigating material or submissions before the Court. Over his objection, I ordered a pre-sentence report and stood the proceedings over to 5 December 2008 for further hearing on sentence.

2 The Crown tendered a statement of agreed facts, a criminal history disclosing that the offender has no prior convictions, a pre-sentence report and extracts from medical records of the offender. The pre-sentence report indicates that the offender politely declined to provide any details of his life or the circumstances of the offence and that he did not want anything to mitigate the lengthy sentence he expects to receive.

3 A victim impact statement was provided to the Court in writing and parts of it were read to the Court. The offender gave evidence, principally to rebut matters of mitigation identified in written submissions provided by the Crown. No other material was put before the Court. The offender was represented by a solicitor at the sentence hearing who repeated, as he had previously indicated when the plea of guilty was entered, that the offender did not wish to make any submissions on sentence. The offender himself, in his sworn evidence, submitted that the Court should impose the maximum penalty, which is imprisonment for life.

4 The circumstance of the offender seeking to maximise rather than to moderate the sentence to be imposed is contrary to the common experience of the Court and invites attention to the question whether the plea of guilty and the evidence on sentence were given freely by a person of sound mind. The offender had apparently anticipated such a concern before he entered his plea. In response to a question from the Crown directed to his health in recent years, he said:

“In anticipation of you going down this path, we have a report that says I know precisely what I am doing and you have nothing to suggest otherwise. At the time of the offence I knew what I was doing. At the moment, and in the last couple of years with regard to the conduct of this matter, I have known precisely what I am doing. Please stop trying to mitigate the offence.”

5 The offender’s evidence on sentence disclosed that he is a highly intelligent and articulate man who wishes to take full responsibility for his acts. His concern to emphasise the absence of mitigating features appeared to me to be a matter of conscience rather than an aspect of unsoundness of mind. I do not think I have any option but to sentence him on the strength of the limited material he has chosen to have placed before me.

Circumstances of the offence

6 The deceased was the natural mother of the offender. She was 69 years old at the time of her death. The offender was then aged 32 years and is the elder of her two sons. The deceased used to divide her time between a unit in Woollahra and a holiday home in Swanhaven. Police attended the house at Swanhaven on 12 September 2006 after her younger son raised concerns as to her whereabouts. They found her body in her bed. An autopsy disclosed that she had died as a result of stab wounds to the chest and torso area damaging her heart, aorta and other organs. There appear to have been four stab wounds that penetrated the torso from the front and three other wounds, two of which were described as superficial. The pathologist also noted a number of what were described as “defensive-type wounds” to the left forearm and fingers. He also found that a number of the deceased’s ribs were fractured.

7 On the morning of the 8th of September, the offender had called a taxi from a public telephone at Cudmirrah, which is about 2 kilometres from his mother’s house at Swanhaven. The taxi took him to the Manildra ethanol factory at Bomaderry, where he stayed for a short time before returning to Sydney, apparently by train.

8 In two interviews with police the offender claimed that he was in Sydney during the time when his mother was killed. When CCTV footage from Bomaderry contradicted those claims, police were granted authority to conduct a controlled operation in which the offender’s brother met the offender on nine occasions using a listening device. During the ninth meeting, the offender told his brother that “of course” he was there and “of course” he did it.

9 He said that after he stabbed his mother, he went in and out of the bedroom a few times, then partially covered her body with the bed clothes and left. He said he did not know where he threw the knife or how he got to Cudmirrah. He said this memory had become clear over time. He did not know why he had gone to Manildra rather than directly to the station, but said he must have been trying to conceal where he was going. Most curiously, the offender told his brother that he was “absolutely certain” that he had killed the deceased and that he had a very clear recollection of being associated with those moments. Those remarks suggest that the offender may previously have entertained a doubt as to whether it was he who killed his mother, and that he was disassociated with other events surrounding the offence, but there is no material before me on that issue.

Findings as to the offender’s state of mind

10 In his sworn evidence at the sentence hearing, the offender said that the version of events he gave his brother during that conversation did not reflect what occurred. The account given by the offender to his brother was that, on the way to the holiday house, the deceased had berated the offender over a lost job offer, telling him that he was useless and was “doing it all wrong”. He told his brother that the conversation continued for hours, starting up again the next morning, and that he wanted the deceased to stop screaming at him. He said that he had a sharp knife in his hand and that, before he had time to think about what he was doing, he stabbed her but that he did not do it deliberately and that if he had had an instant to think about it, he would not have done it.

11 At the sentence hearing, the offender said that it would be very much on his conscience if I took the view that the killing occurred as a result of some loss of temper on his part. He said that was most definitely not the case. I accept, on the strength of that evidence, that his culpability is not moderated by any provocation or loss of self-control.

12 The offender also sought to disabuse me of the impression he gave his brother that he had travelled to Swanhaven with the deceased. He stated that he did not propose to explain how he travelled to Swanhaven, but said “if people travel by covert or clandestine means, then surely they must be up to no good. If your Honour were to draw, from that, conclusions relating to pre-meditation, that would almost certainly be quite correct.”

13 It is difficult to know what to make of that quaint concession. In some aspects of the offender’s evidence concerning his state of mind, he was quite frank, indeed almost boastful. Conversely, there was his curious statement to his brother that he was “absolutely certain” that he had killed the deceased. There is no evidence before me as to how the offender travelled to Swanhaven, whether by clandestine means or otherwise. He did not accept that he went there specifically for the purpose of killing his mother. There is a suggestion in the evidence that he does not have a complete recollection of events. I do not know whether his equivocation on that issue is truthful or manipulative, or both, but I am left in the position that I cannot be satisfied beyond reasonable doubt, on the evidence before me, as to whether the offender had formulated a plan to kill his mother before he left Sydney.

14 The offender gave evidence that he intended to kill his mother. However, he disputed the Crown’s submission that the offence involved gratuitous cruelty. He said he did not intend to inflict cruelty and certainly not gratuitous cruelty. He said that he was attempting to effect the act as promptly as possible, but that it was more difficult to execute than one might imagine. He indicated that he did not, by that evidence, intend to mitigate his sentence but only to be accurate. I am satisfied beyond reasonable doubt that the offender did intend to kill his mother when he stabbed her, but I can make no finding as to when he formed that intention. I am not satisfied that the commission of the offence entailed gratuitous cruelty. That phrase denotes a level of additional cruelty beyond that which is inherent in the commission of the offence. I am not satisfied that was a feature of the present offence.

15 On the issue of remorse, the offender said he was not in the least remorseful, nor was he repentant. He said:

“Given the time over, I would do the same again. I regret perhaps not having done it 20 odd years earlier when the idea first occurred to me, and I think you ought to be aware of that”.

16 He said that there was no psychopathy in him and that he is quite capable of remorse but that it is not a factor in the present case.

17 In respect of the medical records, the offender stated that there is nothing to suggest his mental health was impaired at the time of the offence and that, even if there were, it would not be a defence or even a mitigating factor. He said “it is only a bit of depression”. I have considered the contents of the medical records carefully. They consist mainly of notes made at various times when the offender has been admitted to hospitals for psychiatric care. They tend to confirm, as the offender said, that he has had some depression in the past. The notes also suggest the possibility that he has a narcissistic personality disorder but I am unable to make any finding as to whether that is the case. I have a sense of unease as to this aspect of the matter, but I do not think I have any option but to proceed on the basis contended for by the offender that his moral culpability for the offence is not mitigated by any mental illness that may have been present at the time of the offence.

The plea of guilty

18 The offender indicated that he deliberately deferred entering the plea of guilty until the first day of the trial so as to reduce its utilitarian value. He said that this was not due to any attempt on his part to incur a lengthy sentence but simply due to his belief that it is improper to discount a sentence for the utilitarian value of a plea. It is his view that the discount has become an instrument to extract testimony from accused people in hopeless situations against their own co-accused.

19 The offender’s evidence on that issue appeared to confuse the discount for the utilitarian value of a plea of guilty with the discount for providing assistance to authorities. In any event, I am bound not by the offender’s opinions but by the applicable law, including s 22(1) of the Crimes (Sentencing Procedure)Act 1999 and the analysis of that section by the Court of Criminal Appeal in the guideline judgment of R v Thomson; R v Houlton (2000) 49 NSWLR 383.

20 The Crown said in his written submissions that the appropriate discount for the plea should be assessed towards the bottom of the range proposed in the guideline judgment, that is, close to 10%. It was implicit in that submission that the Crown did not come to Court intending to seek the maximum penalty. However, after hearing the offender’s evidence, the Crown submitted that the offence was placed at the highest end of the range and warrants imprisonment for life.

21 The Crown did not address me as to s 61(1) of the Crimes (Sentencing Procedure) Act. That section requires the Court to impose a sentence of imprisonment for life if satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence. The burden of proving that a case falls within that section rests on the Crown and the standard of such proof is beyond reasonable doubt: R v Merritt [2004] NSWCCA 19 at [35].

22 At common law, the maximum penalty is preserved for the worst case category. In order to characterise a case as being in that category, it must be possible to point to features of the case which are of very great heinousness and to postulate the absence of facts mitigating the seriousness of the crime as opposed to subjective features mitigating the penalty to be imposed: Merritt at [39]. The onus of establishing that the offence entails such extreme wickedness is on the Crown.

23 The basis for the Crown’s submission for a life sentence was that the offender’s evidence established that the killing was both intentional and pre-meditated or part of a planned criminal activity. The Crown also relied on the patent absence of remorse. I accept that the offender intended to kill his mother. However, that is not a matter in aggravation, since it is an element of the offence: Apps v R [2006] NSWCCA 290 per Hunt CJ at CL at [5]. An intention to kill cannot, taken alone, establish that a particular instance of the crime of murder falls in the worst case category, or even that it is above the mid-range of seriousness: see Apps per Simpson J at [49].

24 As to whether the offence was part of a planned or pre-meditated activity, the Crown invited me to infer that the offender set upon a path he had clearly in his mind for a period of 20 years. That was not the offender’s evidence. What he said in respect of the offence was that he regretted, perhaps, not having done it 20 odd years earlier when the idea first occurred to him. In cross-examination, he accepted the proposition that he had been contemplating killing his mother for at least 20 years. That was an extraordinary statement. Twenty years before the offence the offender was 12. I am hesitant to draw any firm inference from the offender’s evidence as to the period of pre-meditation. As previously noted, there is a suggestion in the medical notes that the offender has a narcissistic personality disorder. That evidence was not put before me in a form that enables me to make any positive finding about the offender’s mental state, but it is relevant to an assessment of the evidence he gave. I am concerned that some of the statements made by him were calculated to produce dramatic effect. I am not satisfied beyond reasonable doubt that I should infer that the offence had been pre-meditated for 20 years. I do, however, accept that the offender had previously contemplated killing his mother.

25 Apart from the factors of intention to kill and pre-meditation or planning, the Crown pointed to no matters to support the submission that the offender’s evidence at the sentence hearing placed his crime at the highest end of the range. I am not satisfied that the offender’s level of culpability is so extreme that it can only be met with a sentence of life imprisonment. In coming to this conclusion, I have had regard to a number of decisions in which life sentences have been imposed after a plea of guilty to murder, including Merritt and Knight v R [2006] NSWCCA 292. I have also considered the decision of R v Christov (No 2) [2006] NSWSC 1179 where Kirby J was of the view, and the Crown had not submitted otherwise, that a murder he rightly described as brutal and horrifying was nonetheless not within the worst category.

The appropriate sentence

26 I must therefore fix a term of imprisonment and a non-parole period. The offence of murder carries a standard non-parole period of 20 years. It is well established that the standard non-parole period does not apply to a conviction entered pursuant to a plea of guilty, which the Act contemplates will attract a discount. Nonetheless, it remains relevant as a matter of guidance: R vWay [2004] NSWCCA 131; 60 NSWLR 168 at [68]; [122]. It is appropriate, therefore, to consider the objective seriousness of the offence having regard to aggravating and mitigating factors relating to the offence (including the offender’s state of mind).

27 I acknowledge, especially to the offender’s brother Dr Owens, that this must appear to be a callous exercise but it is one the Court is required to undertake in order to determine the appropriate sentence.

28 As to matters of aggravation, as noted by the Crown, the offence involved violence and the use of a weapon. The offender stabbed his mother, a 69 year old woman, in her home. I am unable to make any finding as to his reason or motive for doing so. I have indicated that I am not satisfied that the offence involved gratuitous cruelty, nor am I able to make any finding as to the extent to which it was planned. I accept that there was a degree of pre-meditation.

29 There are no mitigating factors in the circumstances of the offence (as opposed to the circumstances of the offender).

30 The Crown referred me to the decision of R v Barbetta [2008] NSWSC 688. That was a case in which the Crown conceded the offence fell below the mid-range in seriousness. The sentencing Judge was not satisfied that the offender intended to kill and there was an element of provocation in the form of racist taunts directed towards the offender’s parents. The sentencing Judge also accepted that the offender was remorseful.

31 I have also considered R v O’Connor [2008] NSWSC 1297 where Studdert J concluded that the offence was below the middle of the range of objective seriousness, albeit not by much. His Honour referred specifically to the lack of pre-meditation, an absence of planning and the fact that the offender was subjected to some loss of self-control.

32 The intention to kill and the absence of provocation or loss of self-control establish a higher level of moral culpability in the present case, although neither is an aggravating factor within the meaning of s 21A. I must also have regard to the fact that there was a degree of pre-meditation in the present case. I have come to the view that the present offence is within the middle of the range of objective seriousness but at the high end of that range.

33 The next issue is to consider whether there are matters that warrant moderating the sentence that is otherwise appropriate. The first matter is the fact that the offender has pleaded guilty, albeit on the date fixed for trial. It does not follow, from his opinion as to the impropriety of such a discount, that he is disentitled to receive it. I accept the Crown’s original submission that a discount in the order of 10% is appropriate to reflect the utilitarian value of the plea.

34 As to the offender’s personal circumstances, I have very little information. The medical notes record that he has worked as a political advisor here and in New Zealand. He has intermittently suffered from depression, which according to the medical notes has sometimes been severe, but I do not think he falls into the category of offender for whom general deterrence is inappropriate by reason of mental illness. It is difficult to ascertain whether incarceration will be more burdensome for him than would otherwise be expected by reason of his depression but even if that is the case, I do not think his sentence should be moderated on that account to any great degree.

35 I am satisfied on the balance of probabilities that the offender has good prospects of rehabilitation and is unlikely to re-offend. Although he has frankly acknowledged an intention to kill in this case, it appears that was due to specific aspects of his relationship with the deceased. The Crown accepted that he is a person of good character with no prior convictions. Notwithstanding the offender’s protestations to the contrary, those are all matters to be taken into account in mitigation of the appropriate sentence.

36 As I have noted, a victim impact statement was read to the Court by the deceased’s other son, Dr Owens. It was an articulate expression of the pain and grief that has been inflicted on him by the violent death of his mother at the hands of his half-brother. Although I can convey the sympathy of the Court to Dr Owens, the law does not permit me to take the effect of the death on him into account to increase the sentence that is to be imposed: R v Previtera (1997) 94 A Crim R 76 at 87. I acknowledge that no sentence the Court can impose will be adequate to vindicate Dr Owens’ pain and loss.

37 I have considered whether I should adjust the statutory relationship between the non-parole period and the balance of term so as to provide a longer period for supervision and assistance to the offender in returning to the community. I have come to the view that, having regard to the length of the sentence to be imposed, the parole period according to the statutory ratio will afford adequate time for such supervision.

38 Adam Patrick Owens, I sentence you to a term of imprisonment with a non-parole period of 17 years commencing on 5 March 2007 and a balance of term of 6 years. You will be eligible to be considered for release to parole upon the expiration of the non-parole period on 4 March 2024. The full term of the sentence will expire on 4 March 2030.

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