Regina v Adamson

[2001] NSWSC 499

CITATION:	Regina v Adamson [2001] NSWSC 499
FILE NUMBER(S):	SC 070051/01
HEARING DATE(S):	9-12 April 2001, 17-18 April 2001, 17-18 May 2001
JUDGMENT DATE:	1 June 2001
PARTIES :	Regina v Gerald Jon Adamson
JUDGMENT OF:	Howie J at 1

COUNSEL :	B. Newport QC - Crown P. Zahra SC - Accused
SOLICITORS:	S.E. O'Conor - Crown Nikola Velcic & Associates - Accused
LEGISLATION CITED:	Crimes (Sentencing) Procedure Act 1999 - s 44
CASES CITED:	Bugmy v the Queen (1990) 169 CLR 525 Pearce v The Queen (1998) 194 CLR 610
DECISION:	In respect of each of the aggravated sexual assault offences the prisoner is sentenced to 8 years imprisonment to commence on 7 January 2000 and expire on 6 January 2008. In respect of the manslaughter offence he is sentrenced to 11 years imprisonment to commence on 7 January 2003 with a non-parole period of 7 1/2 years to commence on the same date. That is a total sentence of 14 years with a non-parole period of 10 1/2 years. The non-parole period is to expire on 6 July 2010 the date upon which the prisoner will be eligible for release to parole.

THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

HOWIE J

FRIDAY 1 JUNE 2001

070051/00 REGINA v GERALD JON ADAMSON

SENTENCE

1    HIS HONOUR: On 9 April 2001 the prisoner was arraigned before me on an indictment containing one count of murder and two counts of aggravated sexual intercourse without consent. Each of the charges related to the same victim, Lisa Michelle King. The sexual assault offences were alleged to have occurred on 31 October 1999 and the murder on 1 November 1999. The prisoner pleaded not guilty to each count.

2    Before a jury was empanelled to hear the trial of the prisoner on this indictment, the parties requested that I hold a voir dire hearing to determine the admissibility of what was in effect three recorded interviews between the prisoner and investigating police officers. There were two ERISPs and what is described as a “walk-around” at the scene where it was alleged that the incidents giving rise to the charges took place. I granted the application and the voir dire hearing took place over the next five days during which evidence was called from the investigating police and the prisoner.

3    On the sixth day of the hearing of the voir dire, that is 18 April 2001, during the Crown’s cross-examination of the prisoner, Mr Zahra SC, who appears for the prisoner, asked to have the prisoner re-arraigned. The prisoner then pleaded not guilty to murder but guilty to manslaughter in respect of the first count on the indictment and guilty to both the second and third counts. The Crown accepted the plea to manslaughter in full satisfaction of the first count on the indictment. In those circumstances I was not required to determine the admissibility of the evidence that had been the subject of objection. The Crown tendered that material in the sentencing proceedings.

4    It is important that I emphasise from the outset that, in relation to the death of the deceased, the prisoner pleaded guilty to manslaughter and that the Crown, as the representative of the community, accepted that plea as being appropriate. The prisoner, therefore, is to be sentenced on the basis that he did not intend to kill the deceased or cause her grievous bodily harm or that he was reckless as to her death. This is a very significant matter when it comes to determining the prisoner’s culpability in causing the death of the deceased, and accordingly the appropriate punishment for doing so. The fact that the prisoner is to be sentenced for manslaughter and not murder must be reflected in a significantly lesser sentence than had he been convicted of murder after trial.

5    The facts of the matter are within a relatively short compass. There was in effect only one factual matter that was in dispute, but it was a crucial one in determining the culpability of the prisoner and thus the appropriate degree of punishment to be imposed upon him. This matter concerned the identification of the act of the prisoner that caused the death of the deceased. I will return to this issue after referring to the facts which are not in dispute.

6    On the evening of 30 October 1999 a party was organised by Brendan Ballesty at the home of his parents in McGowan Street, Putney. The gathering was in honour of Halloween and for the purpose of watching a World Cup rugby union match. It appears that invitation was by word of mouth, people being encouraged to invite other friends who they thought would be appropriate. The deceased, who was aged 21, drove herself and several of her girlfriends to the party and arrived at approximately 9:30pm.

7    Earlier that evening the prisoner, who was then aged 19, and several of his friends were at a hotel in Gladesville when they were invited to attend the party by a guest who was collecting more alcohol. They accepted the invitation and travelled with this person to Putney arriving at the party at about 11.30pm.

8    The deceased appears to have spent her first few hours at the party, drinking alcohol and generally socialising with other guests. Evidence of what she was doing at any particular time during the evening or the early hours of the next morning and her state of sobriety is, as might be expected, somewhat conflicting. However there is little doubt that at times during the party she was well affected by the alcohol she had consumed. It may be that because of a medical condition from which she was suffering she became more intoxicated than might have been expected from the amount of alcohol that she had consumed.

9    During the night the deceased mingled with the other guests, danced, watched the television coverage of the rugby match, and spent some time jumping in and out of the spa and pool. She was seen to be drinking both wine and spirits. I shall return to a more detailed account of her activities and the observation of her state of sobriety later in these remarks.

10    At sometime about 3.00am the deceased and a friend decided that they were going to stay the night at the premises. The deceased was feeling the effects of her consumption of alcohol and was concerned that she might be ill if she went home in a taxi. At some stage around this time, the deceased had a conversation with a friend Ian Carlson and indicated that she was tired and was soon going to retire for the night.

11    A short time later the deceased and a good friend, Meagan Aldridge, went to one of the upstairs bedrooms in the house followed by another friend Hamish Ogilvy. The deceased lay on the bed and her two friends spoke together for a short period. At some time the deceased fell asleep and the other two left the room. Ms Aldridge told Mr Ogilvy that the deceased was very drunk and they would have to watch over her.

12    Several times over the next hour Mr Ogilvy went upstairs to the bedroom to check on the deceased, and each time he did so she appeared to be sleeping soundly. On one occasion he woke her and inquired if she was all right and the deceased indicated that she was. She then apparently fell back to sleep and he left the room. Mr Ogilvy stated that about fifteen minutes later he went back into the bedroom to check on the deceased again and he noticed a man, who appeared to be asleep, lying on his stomach on the other side of the bed near her. Others who looked into the room around this time also noticed the deceased and a male person lying on opposite sides of the bed, apparently asleep.

13    Shortly before 6.00am Brendan Ballesty and a friend entered the bedroom in search of someone and observed the prisoner and another person on the floor next to the bed. The prisoner was on his hands and knees and was wearing only his underpants. He appeared to be leaning over somebody and appeared surprised to see them. Assuming that the prisoner was involved, or about to become involved, in sexual intercourse, the two men left the bedroom. Shortly after this incident, sometime between 6.00 and 6.30am, the deceased was observed on several occasions lying on her stomach on the floor beside the bed.

14    At approximately 6:30am the prisoner alerted others in the house that something was wrong with the deceased. He was followed by a group of persons upstairs to the bedroom. The deceased was lying at the left side of the bed, face down and with her head to one side. She was very cold and did not appear to have a pulse. An ambulance was called and the prisoner and another person commenced an attempt to resuscitate her. The prisoner appeared to be in an agitated state, swearing and urging that the deceased wake up. When these attempts at resuscitation did not appear to be succeeding, the prisoner lifted the deceased and carried her outside to the front of the house. He and others again attempted resuscitation. The prisoner continued in a highly agitated state, and was still swearing and yelling when paramedics arrived.

15    The deceased by this time had no pulse and was not breathing. Ambulance officers were able to regain a pulse but the deceased did not return to spontaneous respiration. The deceased was taken to hospital and remained on life support until that support was removed. She died in the early evening of the next day.

16    Police first spoke to the prisoner on 1 November because he had been the person who had found the deceased and summoned help for her. The prisoner told police in an ERISP that he met the deceased, who was a stranger to him, just after he arrived at the party. He said that they had little or no contact with each other thereafter. The prisoner gave an account of going to the bedroom intending to have a sleep and finding the deceased lying on the floor. He said that when she failed to respond to his touch, he became concerned about her well-being and summoned help from others at the party. He assisted in efforts to revive her. When it was put to him by police that he had been seen in the bedroom in his underpants on his hands and knees apparently leaning over someone, he denied the allegation.

17    The police asked the prisoner to supply them with the clothing he was wearing on that night, and he handed them a pair of boots and a pair of trousers. He said that he was unable to give them his shirt or underpants because they belonged to his uncle who had returned to New Zealand and had taken these items with him.

18    Dr Bradhurst conducted an autopsy on the deceased on 2 November 1999. He concluded that the existence of certain haemorrhages over her face indicated that the cause of death was asphyxiation. From his examinations of the deceased, both during and after the autopsy, he formed the view that injuries to the deceased’s face were consistent with a hand having been placed over her mouth and nose. I will return to this finding in more detail later. Dr Bradhurst noticed a recent injury to the deceased’s anus. Dr Edwards, an expert in sexual assault trauma, gave an opinion that the deceased had been subjected to anal intercourse that was likely to have been painful enough to wake her even if she were under the influence of alcohol.

19    On 8 November, at the request of the police, the prisoner voluntarily attended the police station and supplied a specimen of his saliva. DNA profiling carried out on this specimen showed that it was consistent with DNA obtained from semen found on the deceased’s underpants.

20    On 30 December 1999 police arranged for the prisoner to come to the police station ostensibly for the return of his clothing. However, unbeknown to the prisoner, the police had also arranged for a close friend of his who had been at the party, Tyrone Pau, to be at the police station at the same time. The police had earlier obtained a listening device warrant permitting them to record conversations between the prisoner and Pau at the police station. After Pau arrived at the police station a detective informed him that the police had obtained DNA evidence linking the prisoner to the deceased, that she had been suffocated and that police suspected that the prisoner was involved in her death. Pau was then placed in a room in the station in which a listening device had been secreted.

21    After the prisoner arrived at the police station and his clothing had been returned to him, he was told that there were a few things police wished to clarify about the death of the deceased. The prisoner was asked to wait for a short time while arrangements were made to conduct an interview with him and he was taken to the room in which Pau was waiting. The police listened to and recorded the conversation which took place between the prisoner and Pau. It is unnecessary to give the details of this conversation. Although Pau informed the prisoner of what he had been told by the police, the prisoner maintained that he knew nothing about the deceased’s death.

22    The prisoner was then taken to an interview room where a conversation occurred between the police officer in charge of the investigation and the prisoner. This conversation was not electronically recorded as it should have been. According to Detective Dyball, the prisoner initially maintained the version he had given to the police on 1 November. However, after he was asked to explain how his semen came to be on the deceased’s underpants, the prisoner said, “I had sex with her but I didn’t kill her.” When the detective asked him whether she consented to him having sex with her, the prisoner is alleged to have said, “She didn’t say anything”.

23    Following this conversation the prisoner participated in a lengthy ERISP. At the outset of the interview the prisoner was informed that the deceased had died from suffocation. When asked whether he wanted to say anything about his semen being found on her underpants, the prisoner admitted having sexual intercourse with her. He then gave a detailed account of having both vaginal and anal intercourse with the deceased on the floor alongside the bed. He said that he then left the bedroom and went downstairs to find his clothes. A short time later he returned to the bedroom to have a sleep and found the deceased still lying where he had left her. He tried to wake her and, when she failed to respond, he raised the alarm with others in the house. When asked whether he thought that the deceased knew he was having sex with her, the prisoner replied, “Dunno, don’t think so”.

24    While this interview was taking place Pau, who had been kept waiting at the police station, was reminded of the information known to the police which implicated the prisoner in the death of the deceased. Pau was then told to wait in another room in the police station where once again the listening device had been placed.

25    At the conclusion of the ERISP between Detective Dyball and the prisoner, he was again taken to the room where Pau was waiting. Once more the police recorded the conversation between the two men. Again it is unnecessary to detail the contents of this conversation. The prisoner told Pau that he did not suffocate the deceased. Pau repeatedly exhorted the prisoner to tell the truth and that, if her death was accidental, he should say so because it would be better than murder.

26    The prisoner was then returned to the interview room by Inspector Cushway. Again a conversation occurred that was not recorded. Some of that conversation has been objected to and is not before me for the purposes of sentencing the prisoner. However in the part of the conversation to which no objection has been taken, the following took place, according to the statement of Inspector Cushway:

I said, “At this stage you are being interviewed in relation to the death of Lisa King. We have received information about her death including the fact that DNA samples taken from her are consistent with yours.”
He said, “Yeah, I know. I told the other guys.”
I said, “Are you telling me that you had consensual sex with the girl?”
He said, “Well, not consensual.”
I said, “What do you mean? Did she say you could have sex with her?”
He said, “Well no. She just looked at me. She didn’t say anything.”
I said, “Was it consensual or not consensual.?”
He said, “Not consensual I suppose.”

27    The prisoner was then placed under arrest for the offence of sexual assault. A short time later a further ERISP interview was conducted in which the prisoner gave a lengthy account of the circumstances in which he had intercourse with the deceased. During the course of the interview the prisoner gave the following answer:

During sex I was, I dunno, ah I was feeling her body, you know, had my hand just holding her head, like the back of her head. Um I, I don’t remember actually covering her mouth. There could have been something covering her mouth um. I am not too sure.

28    The prisoner was asked whether he put his hand near the deceased’s face at any time and he replied;

“I could’ve, I could’ve, you know, just moved the, the pillow. I could have moved something out of the way, I’m not too sure.”

Later he was asked whether he put his hand over her mouth and covered it, and he replied:

Like I said before, my hands were just moving everywhere. I could’ve brushed past her mouth; I could’ve you know. Not intentionally to do anything, do any harm or anything”.

29    During the interview the prisoner gave answers from which it can be inferred that he knew the deceased was not consenting to sexual intercourse or was at least reckless to that fact including the following:

Q.62 Did you know if she was conscious when you were having sex with her?
A I ‘m not too sure. No. I don’t think so, dunno.
Q.101 Did you in any way seek her consent, did you in any way ask if she would, did you try to find out if she would consent to it?
A. I just feel that I um like wasn’t forced off in a way, where it could be… you know where she um tried to stop me at all, though she could be, you know, reason to say that she was, wasn’t conscious or, at all.
Q.102 If she was awake and fully conscious, do you think she would’ve consented to having sex with you?
A. Maybe not. I’m not to sure, no, no way.

30    The ERISP was suspended just before it concluded so that the prisoner could be taken to the address at Putney where the incidents took place. A video recording was made of the prisoner going to various places in the house describing what he was doing. In particular the prisoner demonstrated in detail what he said occurred in the bedroom between himself and the deceased. The account he gave was generally consistent with that given in the ERISP that had been suspended.

31    In summary the account given by the prisoner was that he entered the bedroom wearing only underpants, as he had been swimming in the spa. He saw the deceased lying on the bed. He began to fondle her and they rolled off the bed onto the floor. The prisoner then took off his underpants and pulled the deceased’s underpants to the side. While the deceased was kneeling head down on the floor, the prisoner knelt behind her and engaged in vaginal and anal intercourse. He said that he recalls her head was turned to the side and was resting on a pillow or an item of clothing. The deceased did not speak a word while he was in the bedroom.

32    The plea of guilty to manslaughter admits that the prisoner was responsible for the death of the deceased as a result of an act of his that was both unlawful and dangerous. The plea of guilty to the two aggravated sexual assault offences admits that he had sexual intercourse with the deceased and he was at least reckless as to whether she was consenting to sexual intercourse. The matter of aggravation alleged is that he caused her actual bodily harm, that being the injury inflicted during anal intercourse. The maximum penalty for the offence of manslaughter is imprisonment for 25 years. The maximum penalty applicable for each of the sexual assault offences is imprisonment for 20 years.

33    As I have already indicated, the matter which was in dispute before me during the sentencing hearing was the manner in which the prisoner brought about the death of the deceased. On behalf of the prisoner it was submitted that I could not be satisfied beyond reasonable doubt that the deceased suffocated as a result of the prisoner placing his hand over her mouth and blocking her nose during intercourse. It was argued that, if I could not be satisfied beyond reasonable doubt of that matter, I could not be satisfied beyond reasonable doubt that the prisoner knew the deceased was not consenting to the acts of intercourse. The Crown, on the other hand, submitted that I would be satisfied to the criminal standard of both these matters. The importance to the sentencing of the prisoner of the resolution of this dispute should be obvious. There would be a significant aggravation of the culpability of the prisoner both for the sexual assaults and the death of the deceased if I were persuaded by the Crown to find that those facts were established by the evidence.

34    In an endeavour to persuade me to their competing points of view each of the parties called evidence from a forensic pathologist. The Crown called the pathologist who performed the autopsy on the deceased, Dr Bradhurst. He was taken through each of the facial injuries suffered by the deceased and asked as to the possibility that the injury was inflicted other than by manual asphyxiation. In particular his opinion was sought as to whether any particular injury could have been the result of an attempt to resuscitate the deceased before the arrival of the paramedics.

35    Dr Bradhurst thought that it was unlikely that a bruise to the left lower eyelid, the injuries to the tongue and the fingernail abrasions to the neck were caused by a non-professional person attempting to resuscitate the deceased. He noted that the tongue of the deceased would have fallen back into her mouth during resuscitation, preventing her from biting her own tongue. In essence, the opinion of Dr Bradhurst was that, while the possibility existed that these injuries were inflicted separately and by some activity other than manual asphyxiation, when the injuries were considered globally, they indicated suffocation by the hand of an assailant, the abrasion to the neck being consistent possibly with an attempt by the deceased to release the hand which was stopping her from breathing.

36    It was Dr Bradhurst’s opinion that the act of suffocation was not caused by the pressure of the body of the prisoner upon the deceased during the two acts of sexual intercourse. In reaching this view he took into account that the deceased was a young woman leading an active life and that the level of alcohol detected in her blood would not have interfered with her being able to move her arms or head in order to obtain a satisfactory airway.

37    Dr Bradhurst did concede that the deceased could have been suffocated by the application of pressure to the back of her head, that pressure being greater than the ordinary force applied during sexual intercourse. He acknowledged that this method of suffocation could explain the bruise on the lower lip and cheek, and possibly the bruise to the left eyelid if there had been contact with a hard object. But he did not believe that this scenario explained the injuries to the tongue or the neck. Dr Bradhurst also conceded that it might be possible for the deceased to have been suffocated if pressure had been applied to the very top of her back just below her neck.

38    The defence called Dr Collins. His opinion was that, having regard to the extensive resuscitation attempts upon the deceased, no great weight could be given to the facial and neck injuries in reaching the conclusion that they were caused by manual asphyxiation. Dr Collins believed that it was possible that a number of events had occurred during and after intercourse which could possibly have account for the death of the deceased other than by manual asphyxiation. Dr Collins was of the opinion that the deceased could have been lying face down with either some depression on her chest or with her back raised and, as a result, her airway might have been blocked because of the positioning of her head and neck. If she were also affected by alcohol to a substantial degree, this fact might explain why she did not make some attempt to breathe. Further, her arms could have been pinned in some way by the body of the prisoner so that she could not extricate herself.

39    Dr Collins stated that the injuries to the tongue of the deceased might have been occasioned during a seizure caused by adult onset epilepsy or an epilepti-form seizure induced by the lowered oxygen content in the brain as a result of the suffocation. He believed that the other facial injuries could have occurred during the later resuscitation attempts. Upon this evidence, Mr Zahra submitted that I could not be satisfied beyond reasonable doubt that there was no other inference to be drawn other than that the deceased had died from manual asphyxiation.

40    Obviously the extent of the deceased’s intoxication at the time of her death is important in determining the manner in which she was suffocated. Dr Moynham calculated that the deceased had an alcohol reading in the range of between 0.08 and 0.106 at the time of her suffocation. Dr Bradhurst considered that the scenario of the deceased suffocating as a result of the weight of her own head in a pillow would be a possibility only if her blood alcohol level was over 0.2. It was the opinion of Dr Collins that if the deceased was in a position, where her neck and head were at an abnormal angle, a level of intoxication reflected in a blood alcohol reading of more than 0.1 could have contributed to her inability to receive an adequate air supply.

41    There are two obvious difficulties in using the blood alcohol level as indicative of the deceased’s state of inebriation: firstly, it is only an estimate, and secondly, alcohol can have a markedly different affect on people so that the reading is an unreliable basis from which to make a finding in relation to a particular individual. There was evidence that the deceased was suffering from chronic hepatitis which may have aggravated the effect of alcohol upon her. For this reason the doctors were asked to give an opinion as to the physical signs which would have been observable if a person were within the critical range of intoxication.

42    Dr Bradhurst considered that a person would have to be almost comatose or in a stupor so that, if he or she staggered and fell to the ground and then took a long time to get up, before the person would be incapable of mustering sufficient strength to remove his or her head from a pillow. Dr Collins thought that somebody who experienced staggered walking, slurring of speech and decreased thought processes would be sufficiently affected.

43    The observations of the deceased’s level of intoxication by those at the party that night are somewhat inconsistent. Most noted that the deceased appeared to be well affected by alcohol during some part of the evening. Doing the best I can to reconcile the accounts, it seems to me that she appeared to be most intoxicated at about midnight. She was described as being moderately affected at about 10.30pm when Mr Howard arrived at the party. At this time she was seen dancing with others by herself and drinking from a wine bottle. The deceased’s close friend, Ms Aldridge, noticed that the deceased was very intoxicated at about 11.30pm and at about that time she was physically ill in the laundry. David Evans left the party sometime after 12.30 am and observed that the deceased appeared to be unsteady on her feet, and stumbled as she bent over to pick up a bottle of wine from the ground. At some stage of the night she was in the spa. There are differing accounts as to when this was. Some witnesses say it was before the football match but Ms Aldridge stated that it was afterwards.

44    People who observed the deceased watching the rugby union telecast at about 2.00am described her as energetic and friendly. She was laughing and chatting with those around her. Ian Carlson stated that when he first saw the deceased after the match finished, sometime after 2.30am, she was “slowing down and sleepy, she was pretty drunk, but mellow”. However, he was able to have a coherent conversation with her at this time. Chad Clough stated that he saw the deceased at about 2.45am and she appeared unsteady on her feet while she was walking up the stairs. At about 3.00am she was lying down in the upstairs hallway near the bedrooms apparently trying to go to sleep. Mr Russell asked her if she was all right and she said she was fine.

45    It seems that the last time that anyone at the party had any significant conversation with the deceased was immediately before Mr Ogilvy and Ms Aldridge put her to bed. This was at about 3.30am. Ms Aldridge stated that she chatted with the deceased for about half an hour before the deceased “passed out on the bed”. When Mr Ogilvy woke her later and inquired after her well-being, she was able to respond. In any event it was at least two to three hours after the deceased went to sleep in the bedroom that the sexual assaults by the prisoner occurred.

46    Mr Zahra relied heavily upon the statement of Brendan Ballesty to suggest that the deceased was still very intoxicated at a time closer to when sexual intercourse occurred than the statements of other witnesses might suggest. He stated that between 4.00am and 5.00am the deceased appeared to be having difficulty walking downstairs and was holding the banister in one hand and a bottle of wine in the other. However, I do not believe this account to be reliable, at least as to the timing of this incident. Mr Ballesty himself admits to being at least moderately affected by alcohol during the evening and his evidence is not consistent with those who had more personal contact and concern for the deceased.

47    If I were required to form an opinion about the deceased’s state of sobriety at the relevant time to the criminal standard I might not be able to do so, but I do not have to make such a finding. I would be in the same position if it were necessary for me to determine whether the injuries to the deceased’s face were caused by manual asphyxiation or if I had to determine beyond reasonable doubt the position of the deceased’s head and neck at the time of suffocation. But it is erroneous to look at each of these matters and decide whether a particular fact is proved beyond reasonable doubt or whether or not that fact proves beyond reasonable doubt that the prisoner suffocated the deceased by placing his hand over her mouth and nose. This is not the way a tribunal of fact is to consider an allegation based upon circumstantial evidence.

48    I am to have regard to all the relevant circumstances and determine whether I can be satisfied beyond reasonable doubt that the only reasonable inference open is that the prisoner did place his hand over the mouth of the deceased and as a result suffocated her. In determining whether I can reach a finding on this matter to the criminal standard I have taken into account the following matters none of which by themselves would prove either that the prisoner placed his hand over the deceased’s mouth or that he had sexual intercourse with her knowing that she was not consenting:

1. the injuries to the face are consistent with a hand being placed over her mouth and there are some injuries which were unlikely to have been caused by resuscitation attempts;

2. the injuries to her neck were consistent with an attempt by her to remove the object inhibiting her breathing;

3. there was evidence that the prisoner’s DNA was found under the fingernails of the deceased;

4. the deceased had injuries to her anus which would have caused severe pain and woken her even if she were intoxicated but not comatose;

5. the evidence of the deceased’s state of sobriety is not consistent with her being comatose at the time sexual intercourse took place nor does it suggest that she was intoxicated to such a degree that she would have been unable to respond to a blockage of airways;

6. the prisoner’s account is generally that the deceased had her head to the side while intercourse was taking place;

7. the conduct of the prisoner is consistent with sexual intercourse being without consent in that he denied intercourse until his DNA was identified on her clothing;

8. the prisoner has made statements consistent with his knowledge that intercourse was without consent.

49    On a consideration of all the evidence, I am satisfied beyond reasonable doubt that the prisoner had sexual intercourse with the deceased knowing that she was not consenting. Even on the prisoner’s own account the deceased said nothing at all at any time before, during or after intercourse; she gave no indication during the party that she had any interest in having intercourse with him; she did nothing from which he could have concluded either that she was consenting to intercourse or that she was even aware of what he was doing to her.

50    Notwithstanding the evidence of Dr Collins and bearing in mind the numerous attempts made to resuscitate the deceased, I am also satisfied beyond reasonable doubt that the prisoner placed his hand over her mouth thereby blocking her nose and that this act resulted in her death. I am satisfied beyond reasonable doubt that he deliberately placed his hand over her mouth so that during intercourse she would not be able to attract the attention of other persons in the house.

51    Upon those findings the manslaughter is a very serious one. This is so notwithstanding that, unlike most cases of unlawful and dangerous act manslaughter, the prisoner did not use a weapon in order to injure or threaten the victim. But the act causing death was committed in the course of the prisoner carrying out two serious sexual assault offences upon the victim in circumstances where the prisoner knew she had virtually no opportunity or capacity to resist his attack upon her. Further, he intentionally performed the act causing the death of the deceased so that he could carry out the sexual assaults upon her. The objective seriousness of such an offence requires that condign punishment be imposed upon the prisoner regardless of his age and other subjective features. The sexual assault offences themselves are serious matters and would alone warrant a heavy sentence even for a young man generally of good character and who had never been to gaol before.

52    I am prepared to sentence the prisoner on the basis that his criminal conduct was not planned to any extent and may have arisen on the spur of the moment when he saw the opportunity that the sleeping victim presented to him. But in light of the nature of the criminal activity that he then embarked upon and its grave seriousness, there cannot be any significant mitigation in the fact that he may not have entered the bedroom intending to rape the deceased. This was hardly a momentary lapse on his part. There were two acts of sexual intercourse inflicted upon the deceased, one of which caused her a significant injury. Although the prisoner may have been affected by alcohol there is no suggestion that he was not fully aware of what he was doing and the criminality it involved.

53    However, the prisoner is entitled to some consideration in that, when he realised that the deceased was not responding to his attempts to wake her, he raised the alarm and he himself attempted in vain to resuscitate her. He could have easily left the house after he returned to the bedroom and found her unconscious. His panic when she would not respond to attempts to resuscitate her was obvious.

54    Further, he is entitled to some discount of his sentence by reason of his plea of guilty even though it was forthcoming at a very late stage in the proceedings and was no doubt spurred on by the fact that the evidence of his admissions to the police was likely to be admitted at a trial. Although the plea had minimal utilitarian value, it at least saved the family of the deceased the trauma of a trial and her friends from having to give evidence that no doubt would have caused them considerable distress.

55    I am prepared to find that the prisoner has of late shown some contrition although there is little or none evident during the interviews with police or his conversations with Pau. At times during his evidence on the voir dire he became emotional when he was referring to the events of this night. I believe that this was because of some realisation of what he had done and spontaneous remorse even though at the very same time he was desperately trying to avoid the consequences of his conduct by being untruthful in evidence before me. There is also evidence from his father and a psychiatrist which indicates that, apart from the plea of guilty, he is finally accepting some responsibility for what he did this night.

56    The prisoner is now aged 20; he will turn 21 next month. He came to Australia from New Zealand when he was 10. He has one matter in his criminal record that is of particular concern. He was charged in 1997, when he was aged 16, with malicious wounding and ultimately sentenced to 100 hours community service in the District Court. The charge arose from an incident in which the prisoner stabbed another student. There were conflicting accounts of what happened, but it seems clear that following an argument over drugs, the prisoner chased a fellow student and stabbed him. A juvenile justice report placed before the court at that time indicated nothing that would account for that behaviour but rather presented the prisoner as being a well-adjusted young man, generally of good behaviour and from a caring family.

57    The prisoner presents in the same way on this occasion. His parents have been at court throughout the proceedings and have been distressed no doubt by both what the prisoner has done and what must be his immediate future. They are hard working people who have presented the prisoner with every opportunity to make better of his life than he has done so far as a result of his serious criminal behaviour. His father gave evidence before me and I believe he has difficulty in comprehending how the prisoner could have committed these crimes. The family visit him when they can and obviously will do what is within their power to support him through the years that he must spend in prison.

58    There is before me a report from Dr Bruce Westmore, a psychiatrist, prepared for the purpose of sentencing the prisoner. It contains nothing that would explain the conduct of the prisoner that led to the death of the deceased. The doctor noted that the prisoner had some anti-social traits to his personality but he did not diagnose a personality disorder. The prisoner during his second interview with the doctor following the plea of guilty did indicate that he now had some insight into what he had done and accepts responsibility for his actions and their consequences. There is no present need for psychiatric or psychological intervention except to address the prisoner’s intermittent drug use and his current difficulties arising from his imprisonment. Dr Westmore believes that he may with maturity lose the aggressive and self-centred tendencies that have resulted in his serious breaches of the criminal law.

59    The Crown did not submit that I should find that the prisoner was a danger to society so that I should be especially concerned with personal deterrence or preventative detention at this stage in his life. Predictions of dangerousness are notoriously unreliable as the justices of the High Court recognised in Bugmy v The Queen (1990) 169 CLR 525. There is, however, a disturbing aspect of his personality displayed by the two serious offences that have brought him before the courts within a period of three years. Whether anything can be done to address this part of his character or whether it will diminish with maturity remains to be seen but it is a matter which obviously will need to be considered by the parole board in determining whether he is to be released at the end of the non-parole period which I shall specify.

60    Clearly because of his youth, the fact that this will be his first time in custody and his general subjective features a court would normally be prepared to find special circumstances existed were the overall sentence not as long as that which must be imposed for these offences. In my view the relationship between the total sentence and the non-parole period prescribed by s 44 of the Crimes (Sentencing) Procedure Act is sufficient to provide him with an adequate parole period. Therefore, I am not persuaded that there are special circumstances requiring or justifying a reduction in the non-parole period.

61    The sentence I am about to impose is what would generally be considered by the courts to be a harsh sentence for an offender as young as the prisoner was when he committed these offences. The sentence for the manslaughter offence will be one of the longest sentences imposed upon a person of the prisoner’s age after a plea of guilty. I have given anxious consideration to the matter because of the prisoner’s youth and the concern the criminal courts must always have to avoid a sentence which will crush a young offender’s incentive and prospects for reform. But in the present case the sentence must both denounce the prisoner’s conduct and attempt to act as a deterrent to other young men who might be minded as the prisoner was to take advantage of a defenceless young female for his sexual gratification.

62    Before imposing the sentence, I note that I have received in evidence a victim impact statement written by the mother of the deceased. It was not admitted for the purpose of increasing the sentence of the prisoner and has not been used by me in any way to aggravate the severity of his crimes or to punish him for what he did. But the reception of such evidence permits the family of the deceased to participate in the proceedings by expressing their grief and loss as a result of the death of their loved one. It reminds the court, if it is necessary to do so, of the real human tragedy involved in matters which come before it. I take this opportunity to expresses the court’s sympathy and understanding to all those who grieve for Lisa King’s senseless death.

63    The sentences I am about to impose are intended to reflect the totality of the criminality of the prisoner having regard to his age and subjective circumstances. In accordance with Pearce v The Queen (1998) 194 CLR 610, I have attempted to determine sentences appropriate for each of the offences and then to attend to the principle of totality by making orders for concurrence and partial accumulation. I have given the prisoner an overall discount of a little more than 10 per cent taking into account the plea and the consequential reduction in the trauma and some contrition by him. I have deducted 2 years from the total sentence I would otherwise have imposed.

64    In respect of each of the aggravated sexual assault offences the prisoner is sentenced to 8 years imprisonment to commence on 7 January 2000 and expire on 6 January 2008. In light of the sentence I am about to impose I do not fix a non-parole period in respect of those sentences as there would be no point in doing so. In respect of the manslaughter offence the prisoner is sentenced to 11 years imprisonment to commence on 7 January 2003 with a non-parole period of 7½ years to commence on the same date. That is a total sentence of 14 years with a non-parole period of 10½ years. The non-parole period is to expire on 6 July 2010 the date upon which the prisoner will be eligible for release to parole.

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Last Modified: 06/19/2001