Regina v Olig

[2000] NSWSC 1246

CITATION:

REGINA v OLIG [2000] NSWSC 1246

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

SC 70016/00

HEARING DATE(S):

09/11/00, 10/11/00, 13/11/00, 14/11/00,
15/11/00, 16/11/00, 17/11/00, 20/11/00,
21/11/00, 23/11/00, 27/11/00, 28/11/00

JUDGMENT DATE:

21 December 2000

PARTIES :

Regina

v

Shane Eugen Olig

JUDGMENT OF:

Adams J at 1

COUNSEL :	Mr Greg Smith with Mr A McCarthy (Crown) Mr Christopher Craigie with Mr Simon Benson (Offender)
SOLICITORS:	S E O'Connor (Crown) T A Murphy (Offender)
CATCHWORDS:	Manslaughter - domestic violence - Victims' Impact Statements - relevance - sentence of twelve years from 24 July 1999 with a non-parole period of eight years expring on 23 July 2007
CASES CITED:	R v Previtera (1997) A Crim R 76 Veen v The Queen (No 2) (1988) 164 CLR 465
DECISION:	Shane Eugen Olig, you are sentenced to imprisonment for twelve years from 24 July 1999. No special circumstances are demonstrated here such as to make it appropriate to depart from the statutory relationship between the sentence and the non-parole period. Accordingly, I set a non-parole period of eight years, expiring 23 July 2007. You will be eligible to be released on parole on 23 July 2007.

SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

THURSDAY 21 DECEMBER 2000

70016/00

REGINA v SHANE EUGEN OLIG

JUDGMENT ON SENTENCE

1    On 28 November 2000, Shane Eugen Olig, having been charged with the murder on 24 July 1999 of Annette Openshaw, was acquitted of that charge but convicted of manslaughter. 2    Ms Openshaw died in a fire lit in her home by the offender at about 6.30 am on 24 July 1999. They were alone at the time. Shortly after the fire the offender made a number of statements to police and doctors admitting that he had lit the fire and giving several accounts of the surrounding circumstances. In evidence in his trial the offender repudiated those admissions and asserted that the fire had, in fact, been lit by the deceased. The jury rejected this evidence as untrue. The offender had constructed an explanation for the relevant events which was in some senses rather cunning but was so unreal as virtually to demonstrate its falsity. Even when, at an earlier stage as I have mentioned, the offender accepted responsibility for the fire, his conversations with police largely comprised interminable criticisms of Ms Openshaw in an attempt, as I see it, to justify his behaviour in lighting the fire although I have no doubt that he was genuinely grief-stricken when he learned of Ms Openshaw’s death. However, this was, even then, tinged with self-justification. 3    I am unable to conclude, I regret to say, that the offender has evinced any significant sign of genuine remorse for his own actions as distinct from his sorrow that Ms Openshaw died. The offender’s dishonest evidence in the trial, to my mind, decisively establishes his lack of contrition. He did not give evidence in the sentence proceedings. 4    The offender and the deceased were, for some fifteen years or so, in what appears to have been a close and mutually supportive relationship before they separated in late February 1999. There were, as there nearly always are, a number of reasons for this separation, some of which had, no doubt, been present in one way or another for some time and others being more immediate. These matters are material only because they provide a context for what occurred on the day of the fire. Since they in no way excuse or mitigate the offender’s offence, I do not propose to refer to them in any detail. 5    Before going further, I should make it clear that the offender has been acquitted of murder. It follows that he is to be sentenced upon the basis that, in lighting the fire, he did not intend to kill Ms Openshaw or cause her serious bodily injury nor did he advert to the likelihood that she might die in the fire. I also accept that the offender was surprised by the speed with which the fire took hold and spread, that he may have attempted briefly and ineffectually to put it out and that, after he had fled by jumping through a bedroom window, his genuine attempts to rescue Ms Openshaw were frustrated by the great heat and large amounts of smoke which developed within a very short time. 6    In attempting to rescue Ms Openshaw, the offender broke a window with his hand. A large piece of glass cut into his wrist and caused copious bleeding although, it appears, that no significant blood vessel was damaged. The offender said that he fled the scene in a panic to go to hospital for treatment of this injury. He had also suffered superficial, though painful, burns. Although the offender’s injuries provided a reason for his departure, I have no doubt that the more important cause was his knowledge that he had started the fire with almost certainly fatal consequences for Ms Openshaw. The offender said in evidence that he thought that she might have managed to escape by following him out through the bedroom window. It is obvious from his behaviour at the time that this was not true and that he thought that she was still in the house when he left. Shortly after the offender escaped from the house, he shouted, “Annette, you bitch”. He said in evidence that this was an angry response to her having put him in danger by lighting the fire. I consider that it was meant in the same sense that his denigration at the hospital of Ms Openshaw was meant, namely that he blamed her for what he had done. 7    The offender had initially been assured by a number of persons that Ms Openshaw had survived the fire and I accept that the offender may have believed this to be true, in part, because I have no doubt that he strongly, indeed, desperately wanted it to be true. His grief on being informed by police of Ms Openshaw’s death was genuine, although its expression (if not the emotion) was relatively shortlived. Typical of the offender’s self-absorption is the following, said almost immediately after he was told of her death -

“You don’t know how much I loved that woman. All she did was play games with my bloody head.”

8    The only basis for the jury’s verdict was that they were satisfied that the offender intentionally lit the fire which caused Ms Openshaw’s death and that this was objectively both unlawful and dangerous. It was, of course, unnecessary for the jury to make any decision about the offender’s actual motives or understanding, once they had determined that he had deliberately lit the fire. However, these subjective factors are most significant in determining an appropriate sentence. 9    The offender spoke to Constable Birch by telephone within minutes of his departure from the scene. He told the constable, “I put fuel down the hallway and lit it”. Shortly after he was informed of Ms Openshaw’s death and whilst he was obviously very upset, the offender said, in response to Detective Senior Constable Jones telling him that the police needed to speak to him about what happened, “She wasn’t supposed to die, nobody was supposed to die”, adding, a little later -

“I went in there with the petrol and I was playing with it and I said, ‘Look Annette, I will burn this whole house down’ and she said, ‘No you wouldn’t do it’. And I lit up a cigarette and it caught on fire all down and it just went...She bolted into the bathroom and before I could get to the front door the smoke had just gone straight up with the house and everything.”

10    (For reasons which do not matter, I am sceptical that the deceased went into the bathroom before making her way into the kitchen, where her body was found.) Three days after his arrest, the offender gave the following account to Dr Buskell, a staff psychiatrist at the Nepean Hospital, in the following terms -

“He told me that he had gone to his de facto’s house, that he kicked the door in, that he had taken a can of petrol which had been in the car for some time, that he threw the petrol on the floor and when she taunted him he threw a cigarette onto it. He said he had gone there to try to scare her into giving back his car ownership book. He said that when he was driven from the house by fire he went back in to try and rescue her.”

11    The doctor noted that the offender, at the time she saw him, was agitated, very distressed, angry and remorseful. 12    In his evidence, the offender denied that he had kicked in the door to the house at any time before the fire started and said that he had done so when he was attempting to re-enter to rescue the deceased after his escape. Certainly, he was seen at the front door by a neighbour at that time. However, I consider that the offender’s evidence about this was a lie and have concluded beyond reasonable doubt that, as he told Dr Buskell, the he kicked the door in to gain entry into the premises in order, at least, to threaten the deceased that he would burn the house down. I am fortified in this view by the offender’s acceptance in his evidence, in substance, that Dr Buskell’s account of her conversation with him was correct. Nor was she cross-examined to suggest that she may have been mistaken. For obvious reasons, the early account given to Dr Buskell is more likely to be true than later accounts, especially when these are tainted by the offender’s dishonest attempts to blame the deceased for lighting the fire. 13    It is necessary to state some background that provides part of the context for the accused’s bringing petrol to the deceased’s house on the morning of the fire. The house in which the deceased and the offender resided from very shortly after their relationship commenced was owned by the Housing Commission and rented by the deceased, the offender believing that he also was a tenant as distinct from a mere joint occupier. In certain circumstances, houses such as this can be purchased by the tenants in which event, of course, payments must be made which are significantly greater than the rent. I accept that the offender and the deceased had agreed to undertake the purchase of the house and that, for this purpose, the offender had for some years paid to Ms Openshaw a substantial share of his earnings as a driver to be paid by her to the Housing Commission. It seems clear that this money was not used for the agreed purpose, although whether (as the offender alleged) it was gambled away by Ms Openshaw is uncertain. However, this does not matter very much. 14    I accept that the offender was shocked when he found out in about February and later confirmed when he visited the Housing Commission after the separation that, contrary to his understanding, Ms Openshaw was the sole tenant and nothing had been paid to the Housing Commission for the purchase of the house. I accept, also, that he felt betrayed by what Ms Openshaw had done. The offender has severe difficulties with literacy and it appears that Ms Openshaw took advantage of this. 15    There is no doubt that the deception preyed on the offender’s mind and added to the anger and frustration which he felt following the discovery shortly before they separated of Ms Openshaw’s relationship with another man. The offender stated with some feeling on several occasions to his friends that Ms Openshaw had got everything and he was left with nothing and that, if she got the house, he would burn it down. Together with the money that he had paid to the deceased over the years, believing that he was purchasing the house, his care and maintenance of it and building a pergola in the back yard intensified his feelings of proprietorship and, hence, anger and hostility at his exclusion from it in favour of Ms Openshaw. When Ms Openshaw’s new boyfriend moved into the house with her, this caused significant additional hostility. 16    The offender was also obsessed by the breakdown of his relationship with Ms Openshaw, at times clearly wishing to be reconciled with her but at other times feeling very hostile towards her. 17    Three days before the fire the offender attempted to commit suicide, in what I believe was a somewhat half-hearted and clearly manipulative way. The offender gave evidence that the deceased had encouraged him to kill himself and, indeed, had given him sleeping tablets to assist him to do so. In light of the offender’s own account to Dr Madden, who treated him on his admission to hospital on this occasion and the way in which the offender gave evidence about this matter, I reject this allegation as untruthful. However that may be, it is clear that the offender blamed the deceased for his situation, saying to a close friend who visited him in hospital that, if she walked through the door at that time, he would kill her. 18    The offender went to the deceased’s house early on the morning of 24 July with a full can of petrol in the car and waited for Ms Openshaw’s boyfriend to leave. I am satisfied beyond reasonable doubt that he went there, at least, to burn down the pergola and that, when this was unsuccessful, he kicked in the door to the house with the can of petrol in his hand, intending to frighten Ms Openshaw. Whether, when he spread petrol around, he then intended to light it or only formed that intention after some exchange with Ms Openshaw does not matter. I think it is inescapable that the offender lit the fire intending to burn the house down, as he had earlier contemplated. Whether, as he said to Dr Buskell, he had been carrying the petrol in the car for some time or only acquired it that morning, as he said in evidence, does not matter. Whether he kicked in the front door when he first arrived at the premises or just before he lit the fire does not matter very much, although I think the latter more likely. Whether there was an exchange in the house between the offender and the deceased before he tried to burn down the pergola, as he maintained, is uncertain, although I doubt it. But this also is unimportant. There may well have been a struggle of some kind between the offender and Ms Openshaw in which she pulled hard at the neck of his shirt and caused a bruise later noticed by a police officer. Precisely when this occurred in the sequence of events is unclear and is immaterial. 19    Of course, it is possible, perhaps likely, that Ms Openshaw said things regarded by the offender as provocative. This does not reduce the offender’s culpability in any respect. I have no doubt that the offender was well aware that lighting the fire was both seriously unlawful and extremely dangerous although I accept that he did not fully appreciate, until it was too late, how dangerous it was and how probably fatal it could well be. 20    It was submitted by Mr Craigie, on the offender’s behalf, that lighting the fire was directed at the house and was not an act of violence directed towards the deceased in the sense that he intended to cause her some physical injury. Whether Ms Openshaw was in the immediate vicinity or not when the fire was lit, it seems to me to be inescapable that the offender realised, at that moment at least, that she might well be injured in some way or other and that he was indifferent to that result, although he did not intend to kill or cause really serious bodily injury or advert to the likelihood that she might be killed. I accept, however, that the offender’s actions were primarily directed against the property rather than Ms Openshaw and, as I have already said, that he almost immediately regretted them. 21    I have accepted that the deceased was unfaithful to the offender for some little time before their relationship broke up and that this was no doubt one of the reasons for the separation. I have also accepted that she deceived him about the tenancy and about purchasing the house and that, in effect, this amounted to the theft of a substantial proportion of his hard-earned wages. These actions, either separately or together, could not justify or excuse the extreme violence necessarily implicit in a threat to burn down Ms Openshaw’s house in her presence. It is clear, moreover, that the offender had contemplated, one way or another, that he might burn the house down and was thus all the more ready to light the fire in response to whatever it was that the deceased did or (more likely) did not do. 22    There is, no doubt, a significant difference in culpability between a cold-blooded pre-meditated act of violence on the one hand and an impulsive one on the other. However, the results can be just as devastating for the victim. Whilst this was not a case, I am satisfied, of the pre-meditated burning of the house yet the sprinkling of the petrol was not purely impulsive, nor was the threat, whether implicit or explicit, which was necessarily associated with that act. The offender intentionally placed himself close to the edge and his going over it was entirely his responsibility. 23    “I lost my temper” and “I didn’t mean to do it” are self-justifying words all too frequently found in the mouths of perpetrators of violence, especially men, and especially in cases of domestic violence. Neither the community nor the law regard these excuses as significantly mitigating an offender’s culpability. The all too frequent protestation by an offender in such circumstances that he loved the victim is mere self-gratifying indulgence refuted by the very act of inflicting injury. Indeed, it seems by some to be regarded as justifying the infliction of violence and deserving of sympathy. 24    It should in fairness be noted, however, that the Crown has not adduced evidence in these proceedings of a history of personal violence by the offender towards the deceased. The offender felt deceived and betrayed and there was some reasonable justification for these feelings. They provide no excuse for his actions on the day in question. It is an aggravating feature of the offender’s offence, that he committed it after breaking into the victim’s home. 25    Offences of so-called domestic violence are always serious. Overwhelmingly, they are committed by men upon women and children. Where the parties are separated, the victim’s home is often violently invaded. Often, as here, the victim is blamed and the offender, far from contrite, is self-justifying. These factors point to the importance of general deterrence as an element of sentencing in such cases, especially where the violence has fatal consequences, whether intended or not. 26    I turn now to the offender’s subjective circumstances. He is now 36 years of age and has no significant criminal convictions. Accordingly, it is appropriate to sentence him on the basis that, apart from this offence, the offender is a person of good character. From the brief history that he has given to the doctors, which I accept to be substantially true, the offender’s childhood was most unfortunate. He believed that his mother had died when he was only two years’ old, discovering later that this was not so. He was subjected to violence from his father and sexual abuse by his uncle. He finished school in year 9 but had not attended much before this as his father required him to work with him as a painter. The offender and the deceased commenced their relationship when he was only 22. The offender’s verbal IQ is below average and approaches the borderline mentally retarded range, with 96% of the population having superior ability in these skills. Not surprisingly, his literacy skills are severely limited, suggesting a specific learning disability. On the other hand, the offender’s performance IQ is very much better, at average level. These assessments do not, of course, measure the offender’s entire range of cognitive ability. For example, he was in steady employment driving trucks and fork lifts as well as undertaking general yard duties. His employer regarded him as a reliable and hard working employee. 27    It seems to me, from the conversations with police at the hospital, that the offender is less emotionally mature than his age. The offender’s personal limitations, intellectual and emotional, no doubt made it difficult for him to deal with the turmoil involved in the breakdown of his relationship with Ms Openshaw and, in some part, explain the folly of his actions. However, having regard to his composite intelligence and to the wilful aggression involved in spreading petrol and lighting the fire in the very presence of Ms Openshaw, I do not consider that the offender’s intellectual limitations significantly mitigate the culpability of his offence. I repeat that I am not sentencing the offender for intentionally causing Ms Openshaw’s death. I should mention that I do not consider that there is any particular need in his case for personal deterrence.

28    A Victims’ Impact Statement made by a number of the deceased’s family has been tendered in these proceedings. It expresses the extreme pain and deep felt grief that they have suffered as a result of Ms Openshaw’s death as well as their hatred of the offender. These feelings are entirely understandable. I am bound to say, however, that it was clearly drawn in terms that assume the offender’s guilt of murder, of which he has been acquitted by the jury.

29    It is important, I think, to point out that, by permitting Victim Impact Statements to be received in a hearing such as this, the law does not thereby place them to be weighed in the scales of justice. I respectfully agree with and adopt the careful reasoning of the Chief Judge at Common Law in R v Previtera (1997) A Crim R 76 at 85 ff as to why this must be so.

30    The loss of a life is the gravest injury known to the criminal law. Accordingly, it is not made any more serious because the victim's death is the cause of pain or grief to others, however intensely felt. It would significantly undermine the moral standards essential to the administration of criminal justice if the life of one person were to be regarded as more or less valuable than the life of another or the killing of one person as more grievous than the killing of another, because of their personal or social circumstances. All right-thinking people would accept that it would be completely wrong to take one day from an otherwise appropriate sentence for an offence which resulted in death because the deceased was selfish, obnoxious, cowardly and without friends or family to grieve for him or her. By exact parity of reasoning, it cannot be right to add a day to an otherwise appropriate sentence because the deceased was generous, brave, loved and surrounded by friends and family who suffered greatly from his or her death. If this were not so, counsel for an offender whose actions caused the death might rationally submit that, as the deceased was of the former character, the crime was less grave and the sentence should be more lenient and the Crown prosecutor, by referring to a grieving family, submit the contrary. The virtues or vices of the deceased, the extent of his or her social connections and whether the death caused grief or was simply unnoticed by the indifference of the uninvolved, would then become the subject of evidence and argument. The law will neither value a life nor punish a death by such a demeaning process. Moreover, the worth that the law ascribes to the life which has been lost is a reflection of that same sense of reason and humanity which requires valuing also the lives of the persons who come to be sentenced. 31    In Veen v The Queen (No 2) (1988) 164 CLR 465, per Mason CJ, Brennan, Dawson and Toohey JJ said (at 476) -

"...sentencing is not a purely logical exercise and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions...”

32    In dealing with offenders, the Court, as I have said, must remain objective and dispassionate. All the relevant facts must be carefully weighed. The circumstances of the crime include not only the result but also the events which gave rise to it, the intentions of the perpetrators, their personal characteristics and attributes and the various explanations for their criminal behaviour. The considerations which moderate the measure of punishment, whilst keeping at the forefront the policy objectives of sentencing, do not arise primarily because of what is due to the offender but what is due to ourselves as a civilized and humane community. They reflect not so much respect for the criminal but the self respect of the community. 33    Shane Eugen Olig, you are sentenced to imprisonment for twelve years from 24 July 1999. No special circumstances are demonstrated here such as to make it appropriate to depart from the statutory relationship between the sentence and the non-parole period. Accordingly, I set a non-parole period of eight years, expiring 23 July 2007. You will be eligible to be released on parole on 23 July 2007.

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Last Modified: 02/02/2001