R v Sorenson, Dean [2010] NSWDC 303

New South Wales District Court

CITATION: R v Sorenson, Dean [2010] NSWDC 303

JUDGMENT DATE: 10 December 2010

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ

DECISION: Convicted.-Sentenced -non-parole period of 6 years - Balance of term of 4 years.

CATCHWORDS: Criminal Law - Sentencing - After trial - Malicious Inflict GBH with intent - Standard Non Parole Period Offence - offender and victim long standing friendship - both serious drug abusers - unfounded claim of drug theft by victim - king hit by offender - 3 stomps to head - traumatic deep-seated brain damage - permanent incapacitation - offender aged 33 - single father - drug induced mental health issues - history of minor offending - standard non parole period not applied

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CASES CITED: The Queen v Gladue [1999] 1SCR 688 [80]

PARTIES: Regina Dean Phillip Sorenson

FILE NUMBER(S): 2009/2530

COUNSEL: Crown: B Ingram Defence: P Segal

JUDGMENT 1. On the morning of Saturday 10 December 2007 Lucas Cree was reported to Emergency Services as unconscious and desperately injured, particularly to the head. The author of that report was Dean Sorenson. 2. In an interview that afternoon Sorenson told police, question and answer fifty-three, "We had work - expected to do work with him, (Lucas Cree)at his mum's house today. So I went back there this morning. I called out. Got someone to buzz me in because he didn't answer. I went up...I went up and opened the screen door, pushed the door and then I seen him. And then I pushed my way in... I called the ambulance and they told me to put him on his side and I put him on his side, and they just told me to tilt his head back, and they asked me if he was breathing, 'Is he breathing?' But first he was gargling when he was on his back... I started to cry because I could see his face..." In the same interview, question and answer 188, he told police: "I just seen his face all puffed up and blood all over his face and all over... the wall. There was dry blood here, going down here, but here on his face was like fresh blood coming out of his face, and when I pushed him on his side as the ambulance said he, like, urinated on the wall." In the same interview, question and answer 221: "His face was all puffed and his eye, I think there was something wrong with his eye because there was blood coming because when he was on his side there was blood coming out of his eye. His eye was - his face was all puffed up." He denied attacking Lucas Cree, saying in answer to a question: "Q. When he started abusing you and being rude, did you argue back with him? A. I was like 'Come on, man. Look, you're just fishing for an argument.' Like, you know, just trying to, like, talk my way out of it because I was drunk too, but I know that what he's trying to do, he's trying to press my buttons but I've done anger management and I know how to deal with things like that...so I just brushed it off." As to Dean Sorenson's relationship with Lucas Cree, at question and answer 207, he said, "I was all panicky and I didn't like to see my mate like that. He's like my brother." At 216, "I was telling him, 'Luke, are you all right, buddy? Are you all right? Are you all right, buddy? What happened?'" 3. A little further into the interview he says, "I consider him my brother and he considers me his little brother because he's five years older than me." However in a telephone call to one of his friends on 23 May 2008 he said: "Yeah, I punched the poofter cunt once, bro, knocked him clean out...hey, look, hey, all it took was one king hit for me...for me to knock clean, I'm telling you, clean out on the floor. Fucking gone. I'm telling you this, cunt, I walked away and I sat there for fucking three minutes thinking fuck, what do I do? I'm going to fuck this cunt up, that's what I'm thinking...I king hit him. Walked away, I sat down on the lounge. I see him knocked down on the floor. I walked up, I couldn't help it. I just stomped on the head three times, bro." Dean Sorenson was arraigned before a jury panel. He pleaded not guilty to two charges, the first being that on about 9 November 2007, at Cabramatta, he maliciously inflicted grievous bodily harm to Lucas Cree, with intent to do grievous bodily harm. There was an alternate count that the jury did not consider, namely that at about 9 November 2007, at Cabramatta, he recklessly inflicted grievous bodily harm to Lucas Cree. 4. After a fourteen day trial [conducted by another Crown prosecutor] his jury found him guilty of the first count in the indictment. Today he is to be held accountable for his criminal conduct. As sentencing judge it falls to me to resolve a number of competing tensions, as I strive to determine the appropriate sentence for this offence before this court, committed by this offender harming this victim in this community; The Queen v Gladue [1999] 1SCR 688 [80]. 5. My initial task requires an assessment of the objective criminality of the offences before the court. I will also need to have regard to matters personal to the offender, called subjective matters. The starting point for these assessments requires me to make findings of fact from the evidence before the court relating to the offence and to the offender. My fact finding task necessarily requires me to find facts consistent with and reflective of the jury's verdict. There is no obligation to find facts at either extreme or favourability or unfavourability to the accused. 6. It is clear that the jury, by its verdict not only rejected the accused's defence but was satisfied beyond reasonable doubt that he was armed with an intention to do grievous bodily harm when he did it. 7. The offender's rehabilitation prospects will have to be assessed, even if looking through a glass darkly. Before any sentence can be made, there are technical questions relating to deterrence, whether special circumstances are to be found, whether this offence attracts a standard non-parole period, the length of the parole period and of course the ultimate term of imprisonment or other penalty to be imposed. None of these can be commenced until the primary facts are determined. What weight needs to be given to all of these matters against an imperative that all sentencing should have as its primary focus the protection of the community will also need to be determined. Further Facts 8. Dean Sorenson and Lucas Cree have been friends and associates for many years, at very least it would seem twenty-five. Both had serious unresolved drug and alcohol issues. As is frequently the case, an important plank in their friendship was their mutual drug and alcohol abuse and the self-destructive support each gave to the other in pursuit of their debilitating and dehumanising addictions. 9. Cree lived alone in a third floor apartment in Hugh Street, Parramatta. Sorenson was a frequenter of the apartment, which included overnight stays with Cree. There is nothing in the evidence that suggests Friday, 9 November 2007 did not start out as a normal day in the lives of both these men. The afternoon of the day was spent by both together, obtaining alcohol and valium tablets to be consumed that night at Cree's flat. Some time between, as best I can determine, 5pm and 6.45pm an altercation occurred between Sorenson and Cree. It is beyond all doubt that Sorenson was the aggressor from start through to the altercation's terrible conclusion. Motive 10. I will in a moment deal with the course of the altercation. I turn now, however, to examine Sorenson's motive. Sorenson's defence was that his level of inebriation was such that he could not form the specific intent necessary to have proved against him the intent to do grievous bodily harm. Called in the defence case to prove this proposition was Dr Furst, a psychiatrist. This was frankly not a matter that the defence had to prove, but rather the Crown had to prove beyond reasonable doubt the intent to do grievous bodily harm. Nonetheless Dr Furst was called. 11. The history taken by Dr Furst centred around a delusional belief entertained by Sorenson that Cree was having sexual connection with Sorenson's ex-partner, and earlier that day had obtained a green substance from a telegraph pole which had been placed in the food that Luke Cree cooked for them both that evening. It was the defence case that Sorenson had confronted the hapless Cree with these issues prior to physical confrontation commencing, and that once it had commenced he was unable to form the specific intent necessary to establish that he had an intent to do grievous bodily harm. 12. The accused gave an account in evidence consistent with the delusional beliefs version given to Dr Furst. The jury rejected his claim of extreme inebriation and, incidentally, of entertaining the claimed paranoid belief. It is easy to understand why it did so. There is no mention of the paranoid beliefs in any of the intercepted phone calls when the topic of assault upon Lucas Cree was discussed. Of course he said nothing to the police about it in the interview conducted on the day following the incident or even in the second interview. Secondly, the intercepted conversations give a much more gruesome and malice laden account of his role in the assault than did his evidence or his account to police. 13. Finally, there was evidence of motive coming from one of the neighbours. Ms McCall, Cree's next-door neighbour, put an argument as occurring the night before she spoke to a female constable. The Crown's recitation of facts proved beyond reasonable doubt, which was submitted as the facts that the Crown suggested I should find and not really disputed, in fact not disputed by the defence, covers this material at para 7: "Tracy McCall, who lived at unit 20, heard an argument between the offender and the victim around early November 2007. She heard the offender say, 'Where's my effin' gear. I know you took it.'" She also heard the victim say, "Don't you remember? You had a shot in the bathroom about 3am." She said the victim and the offender continued to argue and she heard the offender say, "If you want me to get effin' out, you'll have to call the effin' police. You've got an hour to get my gear, you cunt." 14. Having heard this conversation, she rang her mother and went to her mother's place for four to five hours, and arrived home at about 10.30pm. The argument that had caused her to leave home, she said, went on for some seven minutes or so. Ms McCall was however a witness who, while truthful, had difficulty accurately honing into times and dates. Her evidence is useful as to an insight into one aspect of the dynamics of Sorenson's relationship with Lucas Cree. It may also have served to give the jury a motive. 15. The competing account provided by Sorenson is not supported by McCall, who spoke to police the day following the assault, nor is it supported by Wandee Sae-Eng, who gave this account. She lived in Unit 17. She was in her lounge room reading a book on 9 November 2007. Somewhere about 5 and 6pm she heard noises upstairs and an "Ow, ow" sound. She heard the sound more than once and it disturbed her sufficiently that she wandered out to see if she could see what was going on. She was unable to determine anything really and she said that she heard noises like someone falling down. 16. The jury in convicting Dean Sorenson of the principal charge has rejected his account and Dr Furst's expert evidence based upon that account. In the absence of any supporting evidence for his account and the fact that the presence of the evidence before the court throws serious doubt upon it, I reject his account of having paranoid delusional thoughts about Cree's sex life and Cree's poisoning of the food as motives for his argument with Cree. 17. The account Sorenson gives to Bob Nyitrai on 23 May 2008, referred to at the commencement of these remarks, has the ring of truth about it. Nothing in that account suggests delusional beliefs. I am satisfied there was an argument in which Sorenson felt aggrieved. Sorenson had anger management issues. This was a case in which he lost his temper, king hit Cree, knocking him to the floor. The Assault 18. Photo 11 of Exhibit E appears to show two discrete areas of impact spatter consistent with high velocity impact, causing the blood to smash against the wall, one originating close to the measuring tape and the other spreading above a large patch of blood on the wall, to the right of the tape, at about twenty centimetres from the floor. This patch would suggest Cree's head, matted with blood through the hair, was at some time resting against that spot in the wall. Significantly some spatter appears to have travelled nearly half a metre in the air to reach the wall. 19. There also appears to be three areas of blood pooling on the carpet visible on photo eight of Exhibit E, consistent with the area of principal bleeding moving three times. Sorenson admits to returning to Cree after a few minutes contemplation on the couch and stomping on his head three times. 20. I can see clear evidence of spatter consistent with two stomps and other blood patterns that I cannot readily understand without expert evidence. I am prepared to accept his admission against interest of three stomps as being accurate, if I accept the first stomp was sufficient to open the skin and commence the flow of blood revealed in the other two. 21. The couch was left in disarray. It was claimed by Sorenson the TV had been moved. Whether that arises from Sorenson seeking to make the room look as though an intruder had come in, or he was taking something beneath the cushions or some other explanation remains a mystery. As to the TV, I suspect that the jury studying Exhibit D would accept that the angle of the TV was consistent with someone seated at the head of the dining room table, being able to view the TV from there. I do not regard Luke Cree as ever having regained his feet after the initial knockdown blow occasioned by Sorenson. I do not regard him as responsible for any of the disarray of the lounge room relied upon by the defence. In all probability the TV was moved by Cree before the altercation and possibly even before that night. 22. There are numerous phone contacts that occur between the offender and Bob Nyitrai and Tony Burburan. There are five such contacts between 4.29 and 4.58, the longest being an eighteen minute call to Nyitrai. I have no reason on the evidence before me to regard any of these calls as incriminating. These contacts occurred before the assault. There is a gap of two hours and then between 6.50pm and 7.25pm there are seven further contacts. Between 7.25 and 11.16 there appears to be sustained contact from Sorenson to, I think it is, Bob Nyitrai. These calls fix the time of realisation by the offender of the parlous situation he was now in, as a consequence of his unbridled anger outburst, at 6.50pm. 23. There are a series of SMSs to Burburan's phone at 4.13am which were related to seeking travel assistance, as the offender sought to distance himself from the serious criminal conduct he had so recently been involved in. The dispatch of the SMS to Nyitrai seems to provoke an immediate call back from Nyitrai. 24. Sorenson left the premises as best I can glean around 7am. On this evidence Tracy McCall seems sound. He took the opportunity of removing any evidence that incriminated him personally. He returned more than two and a half hours later to begin the charade of discovering an injured friend. 25. During his conversations with Nyitrai and his text messages to Burburan the question of obtaining medical help for the unconscious and agitated Cree must have come up. I am satisfied Sorenson made or participated in the making of a decision not to call for immediate help, or as time passed for help because to do so without first leaving the premises would result in incriminating evidence against him being found. 26. For the purposes of sentencing, however, I have regarded the criminal conduct of the assault charged as completed after the stomping. It may be that the offender's decision to report Cree's injury to emergency services several hours later exacerbated the actual GBH that already was occasioned by his physical assault upon Cree. 27. For the purposes of sentencing, however, the failure to report is evidence limited to evidence supportive of an intent to do grievous bodily harm, as evidence of a lingering of malice towards Cree and strong evidence of an absence of remorse during those crucial hours. 28. The injuries are set out in paragraphs seventeen and eighteen of the Crown's submission. In respect of statement of facts (as said, see "Facts proved beyond reasonable doubt), I take the injuries with one small amendment from them. Paragraph 17 & 18 17. Dr Catherine Cartwright described the injuries of the victim [on arrival at the hospital]. She stated that the victim had sustained a right sided three centimetre face laceration near his eye. A CT scan revealed a five millimetre right frontal subdural haematoma with mass effect and a two millimetre midline shift [of the brain from its usual position]. This means that bleeding was occurring between the lining of the brain and the surface of the brain. The bleeding was causing pressure and movement of the brain, therefore from the middle of the brain there was enough pressure to push the middle of the brain across to the other side. This pressure would have resulted from a high velocity type force from the front and side of the right side of the head. The swelling was related in part to the impact and in part to the medical operation. Dr Cartwright formed the opinion that the injury sustained was serious and potentially life threatening and "could be consistent with an alleged assault."