Regina v Miles

[2002] NSWSC 84

CITATION:	Regina v Miles [2002] NSWSC 84
FILE NUMBER(S):	SC 70087/2000
HEARING DATE(S):	01/06/01, 15/06/01, 17/08/01, -6/12/01
JUDGMENT DATE:	26 February 2002
PARTIES :	Regina Daniel Leslie Miles
JUDGMENT OF:	Hidden J at 1

COUNSEL :	Mr C Maxwell QC - Crown Mr P Bodor QC - Offender
SOLICITORS:	S E O'Connor - Crown Brezniak Neil-Smith - Offender
CATCHWORDS:	Criminal law: sentencing - murder and escape - offender committed murder while an escapee - serving sentence for an earlier murder.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Harris (2000) 50 NSWLR 409 R v Thompson (2000) 49 NSWLR 363 Cameron v The Queen [2002] HCA 6
DECISION:	See paragraph 39

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

HIDDEN J

26 February, 2002

No 70087/00 - REGINA v Daniel Leslie MILES

REMARKS ON SENTENCE

1 HIS HONOUR: The offender, Daniel Leslie Miles, has pleaded guilty to the murder of Yolande Adivira Michael at her home at Sefton in the early hours of Sunday, 1 August, 1999. He was a prison escapee at the time, having escaped from the John Moroney Correctional Centre near Windsor on Tuesday, 27 July, 1999. He has also pleaded guilty to a charge of escaping from lawful custody. For a proper understanding of this tragic case, it is necessary to begin by sketching the circumstances which led to his incarceration and his progress within the prison system prior to his escape.

2 On 20 October 1990 the offender stabbed to death a sixteen year old girl named Donna Newland. He himself was only eighteen at the time. He was tried for the murder of Ms Newland in 1992 before Mathews J and, while he did not deny the killing, he raised issues of voluntariness, provocation and diminished responsibility. He was found guilty of murder and her Honour sentenced him to imprisonment for eighteen years, to commence on 20 October 1990, the date of his arrest, comprising a minimum term of twelve and a half years and an additional term of five and a half years. At the time of his escape in July 1999 he had served almost nine years of that minimum term.

3 The offender and Ms Newland had met in Sydney in May 1989, when she was fourteen and he was seventeen. They fell passionately in love and believed that their devotion to each other would last forever. At the end of that year Ms Newland moved with her parents to the Central Coast of New South Wales, and in January 1990 the offender moved to Perth. Over the ensuing few months there was correspondence between them which, as her Honour observed in her remarks on sentence, demonstrated “the continued closeness and intensity of their relationship.”

4 However, over time, Ms Newland established a new group of friends on the Central Coast and formed a relationship with another young man. The offender returned to Sydney from Perth, and it seems that Ms Newland told him that she wanted to live her own life. She reiterated this when he visited her on the Central Coast and she told him about her new relationship. Thereafter, he wrote her what her Honour described as “a barrage of letters”, from which it was clear that he was obsessed by her and by the idea that theirs was an eternal love, and that he could not accept that the relationship had come to an end. He telephoned her regularly, the calls being affectionate at times but abusive on other occasions.

5 There was a body of evidence from former friends of the offender and Ms Newland, which her Honour accepted, that he told them of his intention to kill her. Ms Newland travelled to Sydney to see the offender on the day before the killing, and they were observed to be very affectionate. Nevertheless, that night he told a friend of his, whose evidence her Honour also accepted, that he no longer loved Ms Newland and that he was going to “pay her back” by stabbing her.

6 He normally carried with him a large knife, and it was with this weapon that he killed Ms Newland the following day. In the light of the evidence, and given the manner in which the issues had been left to the jury, her Honour was driven to the conclusion that the killing was premeditated.

7 In evidence before me, the offender said that he had some limited psychological counselling in the earlier part of his prison term, but that he did not pursue it because he saw his crime as “a one off thing, that would never recur …”. I have the benefit of a report of Dr Olav Nielssen, forensic psychiatrist, amplified by his oral evidence. Dr Nielssen is well respected in his field, and has first hand knowledge extending over some years of the availability of psychiatric and psychological services within the prison system. He saw the offender’s inadequate pursuit of counselling as the result primarily of a failure on the part of the program then in place to identify his needs and address them.

8 That said, it may be that the necessity to deal with underlying personal problems was masked by his remarkable achievements whilst in prison, particularly in the field of music. He had learnt the piano as a child and was interested in music, but it was in gaol that his creative and executant talents flowered. He developed into an accomplished instrumentalist, singer and songwriter. At the correctional centre where he was housed he was involved with education officers in setting up a recording studio, where he recorded some of his songs. I have been impressed by what I have heard on a CD which is in evidence. He was also assisting other prisoners as a “peer tutor” in music theory and audio engineering. Testimonials prior to his escape from educational staff spoke most highly of his capacity, dependability and commitment. Much of this is apparent from some SBS video footage featuring the offender and one of his teachers, Mr Laurie Fraser, which is also in evidence. (As I understand it, that footage was obtained for a program which has not yet gone to air.)

9 It appears, then, that the offender had made significant progress towards rehabilitation, with the possibility of a musical career upon his release into the community. Tragically, however, it is these very achievements which led to his association with the victim of the murder for which he now stands for sentence. It seems that he and Ms Michael had a mutual friend, to whom he provided a recording of some of his music. Ms Michael, having heard it, became interested in the offender and in the later part of 1998 she wrote to him. After they had corresponded for a time she visited him. She became a regular visitor, as well as communicating with him by phone. Although she was aware of the crime for which he had been imprisoned, a loving relationship developed and they discussed marriage.

10 Ms Michael was the mother of two children from a previous relationship. According to the offender, she told him of circumstances in her life which he later found to be untrue: for example, that her family had been involved in criminal activity, that they had been cruel to her and forced her to use illicit drugs, and that she had been raped. Their relationship was not without its difficulties. There was a time when her letters and visits became less frequent and he suspected that there was another man in her life. However, the offender said that they discussed these difficulties and resolved them and that, at the time of his escape, he believed the relationship to be still on foot.

11 It is the offender’s account that in March 1999 Ms Michael told him that she had been diagnosed with a life threatening illness and also that she had been forced into prostitution. There is clear evidence that she had been a sex worker, but it may not have been true that she was forced into that occupation or that she suffered such an illness. Nevertheless, the offender said that he accepted what she told him at face value and it was this information which led him to contemplate escape. He discussed this with Ms Michael, explaining that he would have the opportunity to escape in July as he expected then to achieve a C2 classification, which would entitle him to work outside the prison. They also discussed moving interstate with the two children and starting a new life.

12 The offender did attain a C2 classification as he expected and, as I have said, he escaped from the John Moroney Correctional Centre on 27 July 1999. He made his way to the house at Sefton where Ms Michael was living. She was not at home but he got into the house, he said, by climbing through a window. In the early evening Ms Michael arrived at the house with her two children, to whom he was introduced.

13 It was the offender’s evidence that she was happy to see him and there was no hostility between them. They spent that night and the following day together, and on the following night it was decided that he would travel to Queensland to see if he could arrange accommodation for them there. He intended to make inquiries through a friend in Brisbane. He said that on the next day, 29 July, he travelled by coach to Brisbane and saw his friend, who believed that she could help. He returned to Sydney on 31 July, arriving around midnight. By the time he got to Ms Michael’s house it was the early morning of 1 August.

14 He said that he knocked on several windows of the house, only to hear Ms Michael demanding that he leave or she would call the police. He thought that she might not have realised that it was he. He looked through a curtain on one of the windows, to see a man sitting next to Ms Michael on a bed. That was a man with whom Ms Michael had had an intimate relationship for a few months, although it appears to have been a casual one.

15 The offender said, and I accept, that he has a patchy memory of what then occurred. However, the evidence establishes that he entered the house by smashing through glass doors leading onto a veranda. He said to Ms Michael, “Why are you running away from me?” He dragged her towards the kitchen, where he obtained a knife. Her children emerged from their room, crying and screaming. She, the children and the other man fled from the house, but the offender chased her and stabbed her in the shoulder. He kicked her daughter when she tried to assist her mother. He stabbed Ms Michael several more times, the major injuries being a wound to the neck which perforated the right jugular vein and a deep wound to the chest which penetrated the lung. She died at the scene, the knife still lodged in her chest with its handle snapped off.

16 The offender ran to a nearby house, where he asked for medical assistance for a gash to his hand and a broken finger. He also asked that the police be called, saying that there had been “an accident”. An occupant of that house called the ambulance and the police, and the offender waited at the house. He was arrested and was taken under police guard to Bankstown Hospital, where he underwent surgery for the injury to his hand. He was discharged later in the morning and taken to Bankstown Police Station, where he was interviewed.

17 He said in evidence that, when he killed Ms Michael, he was consumed by uncontrollable anger. He saw her rejection of him as a betrayal. He believed that by escaping he had turned his back on all that he had achieved during his years in prison, and it seemed to him that he had taken that dire step for nothing.

18 The Crown Prosecutor challenged the offender’s account of his reason for escaping and of what occurred after he arrived at Ms Michael’s home. Ms Michael had not visited him in prison after April 1999, some months prior to the escape, and he acknowledged that her last letter to him was received in either late May or early June. It is the Crown case that, in truth, he escaped because he feared for the future of the relationship and wanted to find out whether she was with another man. This, the Crown Prosecutor argued, demonstrated an abnormal possessiveness similar to that which had led to his killing Ms Newland years earlier.

19 There is some other evidence tending to support that contention. I have copies of a large number of letters from the offender to Ms Michael, and in some of them his displeasure about difficulties in their relationship was expressed in no uncertain terms. In an undated letter he wrote “… you know I’m good enough so why are you continuing to treat with utter disrespect. Honestly babe you’re lucky you’re not a bloke or I would have broke your jaw. In fact I’ve broke bloke’s jaws for less than that …”. More significantly, in a letter of January 1999 he wrote: “I know you have a lot of confusion, but for fuck’s sake would you just turn to me, tell me everything and trust me. I do things babe, I am not a talker. Just ask Donna when I told her to stop playing games with my heart or I would put a hole in her heart. If I say I’ll do something, then believe I’ll do it”.

20 Confronted with these passages in cross-examination, the offender said that he was affected by sleeping pills when he wrote them and that on neither occasion was he suggesting that he would in fact inflict violence upon Ms Michael. The passage from the letter of January 1999, of course, was a reference to his killing of Ms Newland. In evidence, he described it as “an indefensible analogy, and … a disgusting one at that”. He said that it was written out of frustration and meant no more than that when he made a promise he always kept it. He believed that people had treated Ms Michael badly in the past and he was intending to assure her that he would not let her down.

21 A statement of Ms Michael’s sister-in-law records conversations with her on 29 and 30 July which suggest that to her the offender’s escape was both unexpected and unwelcome. She also told her sister-in-law that he had gone through her belongings and found love letters from her to her companion, with which he confronted her angrily. This he denied in evidence.

22 On the other hand, there is also material in the prosecution brief lending some support to the offender’s account. He said that Ms Michael’s visits ceased in April 1999 because she was having some problems with the identification she needed to present to gain access to the prison, and it does appear from the statement of a witness that that identification was false. More importantly, several witnesses state that prior to the offender’s escape she predicted that he would be at large at about the relevant time. She could not have believed that he had any prospect of release at the end of July 1999, and what she told those people is consistent only with her knowing that he intended to escape.

23 There is evidence in the prosecution case that Ms Michael did not always tell the truth. This emerges primarily from the statement of a friend of hers, who also gave evidence at the committal proceedings. It is consistent with this that Ms Michael may well have told the offender, falsely, that she had been forced into prostitution and was seriously ill. From the committal evidence of her friend it also emerges that Ms Michael might have conveyed to the offender that their relationship was enduring when, in fact, she was drifting away from him.

24 The offender’s evidence was the subject of searching cross-examination and, while he clearly had a motive to put his actions in the best possible light, he did not impress me unfavourably as a witness. His account appears to be broadly consistent with what he told police on the day of his arrest. He acknowledged that, at the time he escaped, he feared that Ms Michael might have formed another relationship. However, I would not conclude that that was his reason for escaping. I accept that he and Ms Michael discussed his plan to escape, and that he did so out of concern for her welfare and in the hope that he and she could start a new life in another state. Equally, I accept his account of his interaction with Ms Michael in the days following his escape. Certainly, I would not prefer the hearsay material in her sister-in-law’s statement to his sworn evidence about the matter.

25 The Crown Prosecutor acknowledged that this killing was not premeditated. In particular, he did not suggest that the offender had escaped with the intention of killing Ms Michael if he found her with another man. On the other hand, he argued that he must have been aware of his propensity to react violently to rejection and must have foreseen the possibility of his inflicting violence upon Ms Michael if his worst fears were realised. I can see the force of that argument, particularly in the light of the passages from his letters to which I have referred, but I would hesitate to make that finding. Disturbing as to those passages in the letters are, I incline to the view that they were rhetorical. In any event, I doubt that the offender had sufficient self awareness at that time to have the insight for which the Crown contended.

26 The Crown Prosecutor also argued that this killing, like that of Ms Newland, was purely the result of the offender’s inability to accept rejection. In effect, said the Crown Prosecutor, he killed Ms Michael because he had decided that, if he could not have her, no-one else would. However, I consider that his emotional response at the time was more complex than that. No doubt his violent reaction was the product of his dominating and possessive personality, but I accept that he was also moved by his sense of betrayal and his belief that he had squandered everything which he had gained during his imprisonment.

27 None of this is to deny the seriousness of this crime. The offender has killed a second time in circumstances disturbingly similar to the first, and as an escapee while serving the term of imprisonment imposed for that first killing. The Crown Prosecutor submitted that, whatever be my findings of fact about the circumstances and the offender’s motivation, this murder calls for the maximum sentence of imprisonment for life. He referred to the examination by the Court of Criminal Appeal, in R v Harris (2000) 50 NSW LR 409, of s 61 of the Crimes (Sentencing Procedure) Act, 1999 and the common law principles governing the imposition of a maximum sentence.

28 That is a submission worthy of serious consideration. I am mindful that the offender’s culpability for the killing of Ms Michael must be assessed not only by reference to the circumstances in which it occurred, but also in light of the fact that he has killed before: cf Harris, per Wood CJ at CL at par 79 ff. On the other hand, I must not lose sight of the dreadful consequences of life imprisonment in this State, recognised in a number of decisions of the Court of Criminal Appeal and reiterated by Wood CJ at CL in Harris at par 124 ff. Obviously, along with retribution and deterrence, the question of the protection of society looms large in this case. This leads me, then, to the expert evidence before me about the offender’s prognosis.

29 Such information as I have about his upbringing suggests that, while it was not free of difficulty, it was unremarkable and affords no explanation for his criminal behaviour. Dr Neilssen did not diagnose any psychiatric illness and concluded that the offender did not meet the diagnostic criteria for any recognised personality disorder, although he added that he could be described “as having borderline, narcissistic and paranoid personality traits”. In particular, the Doctor considered that both killings arose from the offender’s inability to cope with rejection and to control his emotional reactions. He saw intensive counselling as the only appropriate method of treatment, but he was guarded about the value of counselling as a means of modifying behaviour of that kind. In addition, he said that it is difficult to maintain a long term counselling relationship within the prison system. The best hope he saw for the offender was normal maturation. As he put it in evidence, “… it is generally agreed that there is a reduction in the intensity of maladaptive traits in time, even without counselling. One would hope that those traits would become less likely to lead to maladaptive behaviour.”

30 I also have the benefit of a report of Associate Professor Susan Hayes of the University of Sydney’s Department of Medicine, a well respected clinical psychologist with extensive forensic experience. During her assessment of the offender, she noted that he expressed remorse and showed a measure of insight into the effect of the killing upon the family of Ms Michael, as well as upon his own family and himself. She thought it possible that his inability to control his anger and disappointment was partly the result of the fact that he had not received appropriate treatment whilst in prison prior to his escape. She concluded that he “needs to deal with both offences in counselling, and learn anger management and interpersonal/relationship skills… It is only after lengthy future counselling and assessment that an opinion could be provided as to his long-term risk.” It seems that Associate Professor Hayes is more optimistic than Dr Neilssen about the benefit of counselling.

31 The offender has been undergoing regular psychological counselling since his return to custody, and he said in evidence that there are specific programs, such as anger management, which might be available to him after I have passed sentence. He acknowledged that, at best, he faces a very long period in custody before he could hope for release and he expressed his determination to maintain such treatment and counselling as might be available to him. He also recognised that his difficulties in inter-personal relationships could not be resolved simply by the pursuit of music, valuable as that might be in enhancing his self-esteem.

32 It need hardly be said that I have found this a most difficult sentencing exercise. After anxious consideration, I have come to the conclusion that this is not a case calling for the imposition of the maximum sentence. While the similarities between the murders of Ms Michael and Ms Newland are chilling, the differences between them are significant. Unlike Ms Newland, the killing of Ms Michael was spontaneous and was the product of the complex of emotions to which I have referred. Even though it was perpetrated by a man who had killed before and was an escapee from prison, it does not share the heinousness of the crimes with which the Court of Criminal Appeal was dealing in Harris or the other cases to which reference was made in that decision. In my view, justice would be best served by the imposition of a lengthy determinate sentence.

33 I consider that the offender has a reasonable prospect of rehabilitation. With maturation over the period which he must now serve in prison, together with continued counselling and the pursuit of his artistic endeavours, I have some hope that he will not re-offend upon his release. Consistent with the observation of Associate Professor Hayes, I accept that he is now remorseful. In evidence, he said that he was “disturbed and ashamed” by his crime. He pleaded guilty to murder after his legal advisers had considered possible defences, and tendered him appropriate advice. It was not an early plea and was entered in the face of a very strong Crown case. Nevertheless, he is entitled to a measure of leniency which should be assessed with the assistance of the guidelines promulgated in R v Thompson (2000) 49 NSW LR 363: see s 37A of the Crimes (Sentencing Procedure) Act, 1999 and cl 41 of Sch 2 to that Act. It does not appear to me that that position has been altered by the recent decision of the High Court in Cameron v The Queen [2002] HCA 6.

34 I have received victim impact statements from Ms Michael’s father and brother, together with a brief statement by her children. It is unnecessary to repeat the Court’s approach to these documents, which is now well settled. It is sufficient to say that the statements are moving expressions of the effect upon the family of Ms Michael’s violent and untimely death. It is appropriate that the Court should acknowledge the family’s tragic loss and express to them its deepest sympathy. It has been necessary in these remarks to refer to some evidence which does not reflect creditably upon Ms Michael. I should emphasise that it is no part of my function to pass judgment upon her, and I would not presume to do so. That evidence was relevant only to an assessment of the offender’s criminality.

35 The offence of escaping from lawful custody is itself serious. While I am mindful of the emotional stressors which led to it, the fact remains that it was an abuse of a privileged classification by an offender who was serving a lengthy term of imprisonment for a very serious crime. Moreover, it was his intention to evade recapture by moving interstate. The sentence which I pass for that offence must be cumulative upon the minimum term to which he is still subject and, of course, I must assess that sentence and the sentence appropriate for the murder with an eye to totality. While the escape and the murder are clearly related, I have concluded that the sentence for the murder must itself be cumulative upon that imposed for the escape.

36 The sentence I propose for the escape is imprisonment for two years. I would not reduce that sentence because of the offender’s plea of guilty to that charge, which could be no more than a recognition of the inevitable. As he was at large for several days, I will need to be informed of the date upon which his existing minimum term is now to expire. I decline to set a non parole period because of the sentence which I propose for the murder.

37 Taking all relevant matters into account apart from the utilitarian value of the offender’s plea of guilty, I consider that the murder calls for a sentence in the order of twenty eight years. To recognise the utilitarian value of the plea I would reduce that sentence to twenty five years, a discount of a little over ten percent. Any greater reduction, in my view, would lead to a sentence which fails to reflect the gravity of the crime. As I have said, that sentence will commence at the expiration of the sentence for the escape. I find special circumstances, arising from the accumulation of sentences and the need for the offender to be subject to the sanction of parole for an extended period, and I would set a non-parole period of nineteen years.

38 I have now been informed by the Crown’s representative of the terminal date of the existing non-parole period, being 24 April, 2003.

39 Daniel Leslie Miles; on the charge of escaping from lawful custody you are sentenced to imprisonment for two years to commence on 25 April 2003. On the charge of murder you are sentenced to imprisonment for twenty five years to commence on 25 April, 2005. I fix a non-parole period of nineteen years in respect of that charge. You will be eligible for release on parole on 25 April, 2024.

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Last Modified: 03/11/2002