Regina v "Y"

[2003] NSWSC 468

CITATION:	Regina v "Y" [2003] NSWSC 468
HEARING DATE(S):	03/03/03 17/04/03 23/05/03
JUDGMENT DATE:	11 July 2003
JURISDICTION:	Common Law Division Criminal List
JUDGMENT OF:	Kirby J
DECISION:	Sentence: 16 years imprisonment with non parole period of 11 years.
CATCHWORDS:	Criminal law - murder - plea of guilty - assistance to authorities - sentence after discount must remain reasonably proportionate to offence.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Storey (1996) 89 A Crim R 519 The Queen v Olbrich (1999) 199 CLR 270 R v Bond [2002] NSWSC 786 R v Thomson (2000) 49 NSWLR 383 Queen v Fyffe [2002] NSWSC 751
PARTIES :	Regina "Y"
FILE NUMBER(S):	SC 70011/02
COUNSEL:	P K Lynch (Crown) C B Craigie SC (Acc)
SOLICITORS:	S E O'Connor (Crown) Catherine Hunter (Acc)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

DAVID KIRBY J

Friday 11 July 2003

70011/02 - REGINA v "Y"

JUDGMENT ON SENTENCE

1 KIRBY J: On 3 March 2003 a person who I will refer to as "Mr Y" pleaded guilty to the murder of Michael Collins who died on or about 23 August 2001. It remains for me to pass sentence. To do so, I must first determine the facts relevant to the sentencing discretion. Where the facts are adverse, they must be established beyond reasonable doubt. Where they favour Mr Y, it is enough that they should be proved on the balance of probabilities (R v Storey (1996) 89 A Crim R 519; The Queen v Olbrich (1999) 199 CLR 270).

The Incident

2 Mr Michael Collins was 49 years old. He lived alone in a flat in Darlinghurst Road, Kings Cross. He was homosexual. He made no secret of that fact. Mr Y told the police that on 23 August 2001 he went to Mr Collins' flat "for a bit of company and to have a drink". He had met Mr Collins a week before. He knew that Mr Collins would have alcohol.

3 Mr Y said that he arrived at the flat at about 9.00 am, or perhaps 9.30 am. There is some uncertainty about that time. A telephone call was made from the flat to Mr Y's mother at 7.51 am. That may suggest that Mr Y was at the flat somewhat earlier. The time of his arrival is only relevant insofar as it is capable of shedding light upon the nature of Mr Y's relationship with the deceased. However, there is simply not enough information about the actual time of arrival to draw an inference one way or the other.

4 What is clear is that the deceased and Mr Y boarded a bus to the city at about 9.40 am. Mr Collins recognised a woman on the bus. She had previously worked with him. He introduced her to Mr Y. The atmosphere, according to this woman, was jovial. The deceased and Mr Y left the bus at Market Street in the city.

5 Mr Collins was a member of the Tattersalls Club. He and Mr Y went to the club for a drink. The club, however, refused Mr Y entry because he was wearing running shoes. So he and the deceased went to a menswear store in George Street. At 10.28 am Mr Collins purchased black shoes for Mr Y. They then returned to the club. Mr Collins signed Mr Y into the club, and they had lunch. In the course of lunch, Mr Y had about 12 middies of beer.

6 At some time before 1.50 pm, the deceased withdrew $500 from his credit union. He and Mr Y then returned to the flat. On the way to the flat, Mr Collins purchased two bottles of Scotch. At 2.30 pm Mr Collins telephoned the woman he had met on the bus. However, she could not speak at that time. She promised to ring back.

7 Mr Y and the deceased began drinking the Scotch. In the course of the afternoon one bottle was consumed. The second was opened. At some point before 6.30 pm, Mr Y attacked the deceased.

8 The attack was particularly brutal. Mr Y later described what happened to the police. He said that he had smashed a glass he was holding into Mr Collins' face. It crumbled and broke. There were extensive lacerations to Mr Collins' face and neck. Mr Y cut his hand at the same time. The attack, however, did not end there. Indeed, Mr Y acknowledged to the police that he "went mad". Using a brass vase or trophy, he struck the deceased on the head a number of times. It is plain that he then choked Mr Collins using a belt, although he had no recollection of having done so.

9 The body of Mr Collins was not discovered for almost 24 hours. Dr Lawrence, pathologist, attended the flat at about 9.10 pm the next day, the 24th August 2001. Having removed the belt, there was a ligature mark around the neck. There were petechial haemorrhages to the eyes suggesting strangulation. On post mortem, Dr Lawrence found a fracture to the left side of the thyroid cartilage. He formed the view that death had been caused by strangulation. He estimated the time of death as between midnight on 23 August 2001 and 4.00 pm the next day.

10 It would appear, therefore, that the deceased was still alive when Mr Y left the flat. A call was made from the flat to Mr Y's father at 5.45 pm. A further call was made to his mother at 6.02 pm. I infer that both these calls were made by Mr Y shortly before leaving the flat. At about 6.30 pm the woman on the bus that morning returned Mr Collins' call as she had promised. The phone was not answered.

11 Mr Y acknowledged that he took money from the flat. He provided the police with an estimate of $1,000 to $1,500. A video recorder was also missing from the flat. However, no inference can be drawn that it was stolen by Mr Y. In his elaborate confession to the police, he made no such acknowledgement. The flat was open for almost 24 hours before Mr Collins' body was discovered.

12 Having left the flat, Mr Y met a friend, Ms Sharon Crawley, in Darlinghurst Road at 7.15 pm on 23 August 2001. He had a tea towel wrapped around his hand, which was bleeding. He said that he had "heaps" of money. Together they went by taxi to Redfern where they bought heroin and other drugs. In a nearby lane they each injected the heroin. Shortly thereafter Mr Y collapsed upon the median strip of Regent Street, Redfern. He had overdosed. At 7.51 pm he was treated by ambulance officers who had been called to the scene.

The Motive for the Attack

13 What, then, caused Mr Y to brutally attack Mr Collins in this way? Mr Y was interviewed by the police. Four possibilities emerge from his answers. First, there is the obvious motive of robbery. At least $1,000 was taken from the flat. However, there were many opportunities to rob Mr Collins in the course of the day, had that been Mr Y's intention. Indeed, he could have done so without violence. Mr Collins was comparatively small. He was older. He was drunk. The money was not hidden. I am not persuaded that robbery was the motive for the attack. I accept the submission made by counsel for Mr Y that the theft of the money was opportunistic.

14 The second possibility suggested by Mr Y was that Mr Collins was a paedophile. Mr Y had been abused as a child. He said to the police that Mr Collins had shown him pornography depicting young boys, and invited him to watch videos which included sexual acts with boys aged 14 years. This material triggered painful memories of his youth, such that he lost control. Again, I am not persuaded. There is no evidence that Mr Collins was a paedophile. Certainly he had pornography in the flat. However, it depicted adults, not children.

15 The third possibility, also raised by Mr Y, is that Mr Collins, in the course of the afternoon, made sexual advances which were unwelcome. Indeed, he was affronted. Whereas at one time he believed himself to be homosexual, he said he later discovered an interest in women. He formed a relationship with a particular woman with whom he had a child, a daughter aged 10 years.

16 Again, to my mind, this account does not provide a convincing motive. Mr Y, at various stages of his life, had been a sex worker offering homosexual men sex in return for money. By this means he financed his need for drugs, including heroin. Indeed, he told the Probation and Parole Service in a recent interview that, after his release from gaol on 25 July 2001, he supported himself financially by this means. Why, then, would a proposal of sex in return for money from Mr Collins cause him to act in the way that he did?

17 The final explanation provided by Mr Y is the most plausible. I accept that Mr Collins proposed that they should have sex, offering money. I accept that Mr Y, for whatever reason, declined. Mr Collins, in these circumstances, according to Mr Y, then called him a "dog". That remark touched a nerve. Mr Y had spent some time in gaol. The word "dog" is a particular insult within the prison system. It signifies someone who has broken the code of silence and informed on another inmate.

18 The insult, for Mr Y, had a particular sting. He had twice provided evidence against other inmates, as I will shortly describe. He had, within the gaol, been branded a "dog". It was this remark, I believe, which caused Mr Y (in his own words) "to snap". It was a comment made by the deceased at a time when he was heavily intoxicated by alcohol. His blood alcohol reading was 0.274 grams per one hundred millilitres of blood. Mr Y was likewise heavily intoxicated. The remark, perhaps unwittingly, provoked Mr Y. Although it does not amount to provocation in law, it furnishes an explanation for what occurred, although obviously not an excuse. I accept that the attack upon Mr Collins was a spontaneous outburst. It was not planned (cf s21A(3)(b) Crimes (Sentencing Procedure) Act 1999) ("the Act").

Mr Y's Background

19 Mr Y has furnished a description of his early years (Exhibit 2). He was born on 16 December 1970. He is therefore 32 years old. He did not know his father, although he has spoken to him once. His mother was alcoholic. His relationship with his stepfather was violent. He ran away when aged 11. He lived for a time on the streets. He was made a State Ward. His education was neglected. He came before the Children's Court in 1983 when not even 13 years old. He became involved in drugs. He thereafter committed crimes in order to purchase drugs, and was regularly brought before the Children's Court in 1984, 1985 and 1987.

20 In 1985 he was befriended by an adult male who I will refer to as Prisoner 1, who sexually abused him. I will return to this aspect later in these remarks.

21 On 2 September 1987 Mr Y was sentenced for malicious wounding to 15 months imprisonment with a non parole period of six months. In the years that followed, Mr Y was charged with various offences, including common assault in 1990, and malicious damage in 1991. He was treated leniently, being given a recognisance in each case. In 1997 Mr Y was charged with possessing a prohibited drug, heroin. Again, he was given a recognisance.

22 In April 1999 Mr Y was charged with a number of armed robberies. He pleaded guilty to two counts. Each offence involved a knife. He asked the court to take account of four additional offences on a Form 1. The offences included two further armed robberies, one involving a blood filled syringe, and the other a replica pistol. He was sentenced by Judge Davidson on 14 December 1999. The sentence reflected, amongst other things, an acceptance by his Honour that Mr Y had some insight into the link between his criminal behaviour and alcohol and drugs. His Honour accepted that he intended to enter a long term rehabilitation programme.

23 The sentence also took account of assistance Mr Y had given the police in respect of the sexual abuse committed by Prisoner 1. Mr Y was one of a number of victims of Prisoner 1, who was convicted and sentenced in 2001. Judge Davidson discounted the sentence by 50 percent to reflect both the plea of guilty and the assistance to authorities which Mr Y had provided. On the first count of armed robbery, his Honour imposed a sentence of three years imprisonment with a minimum term of one and a half years. On the second count, he was sentenced to imprisonment for two years and three months, again with a minimum term of one and a half years.

Incident in Gaol

24 Whilst serving this sentence at the Silverwater Correctional Centre, Mr Y shared a cell. On Sunday 19 March 2000, his cellmate was brutally murdered in the yard. His head was crushed by a brick and a large piece of sandstone. Mr Y had witnessed two inmates transfer the piece of sandstone from the garden bed to a location not far from the place where the murder took place. After the murder, one of the inmates involved in the transfer approached Mr Y. He asked him not to mention the incident. Mr Y, however, made a statement to the authorities on 3 April 2000, in which he described what he had seen. I accept that his involvement had an unsettling effect upon Mr Y.

25 On 10 October 2000 Mr Y was released to parole. He immediately began using alcohol. Soon after he was again using heroin. He stole his mother's television set. He was charged with stealing and sentenced at the Sutherland Local Court on 26 April 2001 to three months imprisonment. He returned to gaol.

26 On 13 June 2001 Mr Y was called as a witness in committal proceedings relating to the murder of his cellmate. His evidence conformed to the statement he had provided in April 2000. Two prisoners, who I will refer to as Prisoner 2 and Prisoner 3, were committed for trial.

27 By 25 July 2001 Mr Y had completed the sentence imposed by the Sutherland Local Court. He was again admitted to parole. It was a condition of his release that he should report at once to Lyndon House Rehabilitation Centre and contact the Probation and Parole Service. Mr Y did neither. On 7 August 2001 his parole was revoked.

28 In a recent interview by the Probation and Parole Service, Mr Y told that service that soon after his release from gaol he resumed heavy drinking and working as a sex worker. Within less than a month, on 23 August 2001, he murdered Mr Collins. He was arrested on 30 August 2001. He has been in custody ever since.

29 The Crown accepts that, although his parole had been revoked, and he had resumed the sentence for armed robbery, his sentence in respect of the present offence should date from the time of his arrest, 30 August 2001.

Plea of Guilty

30 On 19 November 2001 Mr Y was called to give evidence in the Supreme Court hearing into the charge of murder against the two inmates who had been committed for trial. He refused to be sworn. It was implicit in the reason he provided for his refusal that he was in fear. The trial did not proceed. The two accused faced trial again in May 2002. On 13 May 2002 Mr Y gave evidence. He resiled, to some extent, from the account he had provided. He was not sure of the identity of the inmate involved in the transfer of the piece of sandstone. He had no recollection of the conversation in which the same inmate asked him not to speak about the incident. The Crown, in these circumstances, sought and was given leave to cross examine.

31 During the period that Mr Y was required to give evidence for the Crown, he was also required to deal with the charge of murder involving Mr Collins. He saw a senior public defender shortly before he gave evidence in May 2002. He saw his counsel again after the trial. His solicitor provided an affidavit in which he said that Mr Y appeared distracted and distressed at each conference. He instructed his solicitors that he wished to plead guilty to the charge of having murdered Mr Collins. He said: "I am not emotionally stable enough to go through a trial." He simply wanted the case finished. He entered a plea of guilty on 29 May 2002.

32 On 29 August 2002 Mr Y made application to Greg James J to withdraw that plea. The application was supported by a report from Dr Westmore, psychiatrist. It was plain that his decision to plead guilty was made at a time that his mind was in turmoil by reason of his role as a Crown witness in the other murder prosecution. His Honour gave leave to withdraw that plea ([2002] NSWSC 786). The matter was then fixed for trial before me to commence on 3 March 2003.

33 Mr Y once more received advice in respect of the charge which he faced. By that time his role as a Crown witness was behind him. He was at last able to consider his own interests without the distraction of the other matter. On 3 March 2003 Mr Y again pleaded guilty. A conviction was recorded.

34 Having regard to this history, I do not regard the plea of Mr Y as one entered at the last minute. The case against him was strong. However, Mr Y acknowledged from the outset his responsibility for the death of Mr Collins. The only issue was whether, as a matter of law, the circumstances might warrant a reduction of the charge to manslaughter by reason of provocation. There was, perhaps, some prospect, although slight, of that partial defence succeeding before a jury. The trial, had it gone ahead, would have been likely to have lasted a number of weeks. Mr Craigie SC, for Mr Y, suggested that Mr Y should not be penalised for the late entry of the plea, and should receive the full discount of 25 percent suggested by R v Thomson (2000) 49 NSWLR 383, per Spigelman CJ at 418. I believe that the appropriate discount is 15 percent. In reaching that figure, I have accepted the opinion of Dr Lennings, psychologist, and others, that Mr Y has shown genuine remorse. The discount includes the utilitarian benefit.

Assistance to Authorities

35 Mr Y has on two occasions provided assistance to authorities. The first was in respect of Prisoner 1. That assistance was recognised by Judge Davidson in the substantial discount he made when sentencing Mr Y for the armed robbery offences. No further discount is appropriate.

36 The second occasion concerned Mr Y's evidence in the trial of Prisoner 2 and Prisoner 3. That assistance should be recognised in respect of the present charge by the imposition of a lesser penalty (s23(1)). The penalty, nonetheless, must not be unreasonably disproportionate to the nature and circumstances of the offence (s23(3)).

37 In determining an appropriate discount a number of issues must be considered (s23(2)). The statement of Mr Y describing matters which he had witnessed shortly before the murder of his cellmate was important evidence for the Crown. His observation was ultimately adopted by the trial Judge as a finding of fact on sentence (Queen v Fyffe [2002] NSWSC 751, para 9). Mr Y gave evidence at the committal in accordance with that statement. Thereafter he was less than fully co-operative. He refused to be sworn in November 2001. When called by the Crown in May 2002, he modified his evidence in important respects. The trial Judge, when sentencing Prisoner 2, was satisfied that his evidence was false and that his earlier statement and evidence had been true.

38 The change in Mr Y's evidence was, I believe, the product of fear. The victim had been his cellmate. His murder was particularly brutal. It was also a reprisal for having given evidence for the Crown. Mr Y, having made his statement to the police, was later transported to court in the same vehicle as Prisoner 2, although separated from him. He said, and I accept as probable, that in the course of that journey he was abused and threatened by Prisoner 2. Mr Y was, on another occasion, also threatened by another inmate. I accept that the threat was connected to his role as a Crown witness.

39 By the time he gave evidence Mr Y had murdered Mr Collins and been arrested. He faced the prospect of a long gaol term. Inevitably there was the possibility of intermittent contact with Prisoner 2 and Prisoner 3 and their associates. Mr Y was apprehensive lest he should meet the same fate as his cellmate. His fears were understandable.

40 Notwithstanding the retreat from his statement and evidence given at committal, Mr Y's evidence was useful to the Crown. It gave coherence to the Crown case.

41 Mr Y applied to the Department of Corrective Services to be placed on protection. His application was refused. Prisoner 2 and Prisoner 3 in the meantime were each sentenced to life imprisonment. Mr Y is currently held in the Medical Transient Remand Centre at Long Bay. The centre services the general prison population. He recently heard the name of Prisoner 3 on the loudspeaker system. Mr Dominic Pezzaro, the Deputy Manager of Inmate Classification, gave evidence. He said the refusal to provide formal protection to Mr Y did strike him as unusual. It certainly strikes me as unusual and unsatisfactory.

42 Mr Y, in consequence, has felt obliged to ask for a form of protection known as Protection, Non-Association. By choice, he has nothing to do with other prisoners. He spends over 23 hours a day in his cell. He has limited access to inmate programmes.

43 Dr Lennings, psychologist, saw Mr Y on 11 April 2003. He reported a high level of anxiety. He said this: (para 31)

"Mr Y is currently a 'strict non association' classification. Generally, such a classification would produce severe psychological deficits in a person as the sense of interpersonal isolation becomes intolerable. Mr Y is a young man, and has a reasonable degree of sensation seeking and stimulus seeking in his personality. He already talks to himself (he tells me) and utilises fantasy and dissociative mechanisms to cope with his current circumstances. The likelihood is that if he stays in such confinement over a longer period his behaviour will become more inward turning and bizarre as he seeks to project his mental world into his external reality. The analogy is the experience of sensory deprivation candidates who eventually develop psychosis-like symptoms in order to cope with the numbing of their senses."

44 He added: (para 32)

"Returned into the main population I suspect he will become over-stimulated (through fear and anxiety) and his behaviour will subsequently deteriorate, assuming he is not, in fact, hurt. Left on strict protection he will run the risk of quietly acting as if he is going 'mad'. However, I regret I can see no alternative for him."

45 I understand that Mr Y's application for protection will be reviewed after I have imposed sentence, and the committee will have regard to these remarks. I would strongly urge that Mr Y be admitted to a form of protection which will permit association with other inmates, and provide him with an appropriate level of security. I believe the form of protection is termed Special Management Area Placement.

46 Having regard to the nature of the assistance provided by Mr Y, and the hardship which he is likely to experience when serving this sentence (and taking into account s23(3)), I believe that an appropriate discount, including the plea of guilty, should be about 33-1/3 percent.

Prospects of Rehabilitation

47 Judge Davidson, in 1999, when sentencing Mr Y for armed robbery, accepted that there were reasonable prospects of rehabilitation. He remarked that Mr Y appeared then, as he appears now, to have some insight into the link between drugs and alcohol and his offending behaviour. At the time he imposed sentence, Mr Y planned to enter Odyssey House, when admitted to parole.

48 However, that resolve dissipated in the 18 months of his sentence. It did so, partly I believe, because of the unsettling effect of the gaol murder and his role as a Crown witness. Necessarily, the sentence that I must impose will be significantly longer. Mr Y will emerge from gaol a somewhat older man. Maturity is likely to help in his rehabilitation. Notwithstanding his history, I regard the prospects of rehabilitation as reasonable.

Sentence

49 Murder has always been regarded as the most serious offence in the criminal calendar. Absent extraordinary circumstances, it calls for a substantial sentence by way of imprisonment to serve the interests of punishment, including general deterrence. The circumstances in which Mr Collins died were brutal in the extreme. He was left for dead, although still alive. I accept that he was unconscious. He died some hours later. It is a circumstance of aggravation that the crime was committed whilst Mr Y was on parole (s21A(2)(j)). His record does not entitle him to leniency (s21A(2)(d)). The only matters by way of mitigation are that the attack was not planned (s21A(3)(b)) and was, unwittingly, provoked by a remark of Mr Collins (cf s21A(3)(c)). Taking account of the plea of guilty, and the assistance to authorities, and bearing in mind the requirements of s23(3) of the Act, the appropriate sentence is a term of imprisonment of 16 years. I make a finding of special circumstances. Mr Y's conditions of confinement are likely to be more harsh than would ordinarily be the case. He will, by reason of his involvement with drugs and alcohol, benefit from an extended period of supervision. The non parole period should be 11 years. The Crown acknowledges that the sentence should date from Mr Y's arrest (30 August 2001).

50 Mr Y, I sentence you to imprisonment for 16 years commencing on 30 August 2001, with a non-parole period of 11 years. You will be eligible for release on parole on 29 August 2012. Your sentence will expire on 29 August 2017.

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Last Modified: 07/14/2003