New South Wales Supreme Court CITATION : R v KORHONEN [1999] NSWSC 933 revised - 04/11/99 CURRENT JURISDICTION : Criminal Division FILE NUMBER(S) : 70076/97 HEARING DATE(S) : 13/08/99 15/09/99 JUDGMENT DATE : 1 October 1999 PARTIES : Crown: Director of Public Prosecutions Prisoner: Tomi Antero Korhonen JUDGMENT OF : Hulme J at 1 COUNSEL : Crown: Mr J Bennett Prisoner: Ms S Kluss SOLICITORS : Crown: Director of Public Prosecutions Prisoner: Heidi Muggenthaler & Associates CATCHWORDS : Criminal law; sentencing; manslaughter; recognisance DECISION : Released on recognisance IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION NO: 910076 of 1997 1 October 1999 HULME J REGINA v Tomi Antero KORHONEN JUDGMENT HIS HONOUR : ( NOTE : During the trial in this matter, I made an order that there be no identification of the Prisoner other than by the pseudonym "K" in any report of the proceedings and later a further order that there be no publication of (the names of) the persons named in the departmental file (of the Department of Community Services). It is appropriate to limit that order to persons (other than the deceased) to whose care the Prisoner was entrusted over the years, and to add the qualification "otherwise than by their initials". I now so order. Consistently with that order, I intend to refer to such persons by their initials. In large part these Reasons were prepared prior to any decision being made as to the appropriate sentence to be imposed. It is convenient to continue to refer to K as "the Prisoner", notwithstanding the order made prior to the publication of these Reasons.) 1 A decision as to the appropriate sentence to be imposed in this case was difficult. The circumstances presented starkly the competing requirements of deterrence and retribution on the one hand, and rehabilitation and allowance for the subjective considerations of the Prisoner on the other. Ultimately I decided he should be placed on recognisance. These are the reasons for that decision. 2 On 17 May last an indictment charging the Prisoner with the murder of Geoffrey Boyson on or about 24 October 1996 was presented. The Prisoner pleaded not guilty. On 8 June a jury found him guilty of manslaughter. 3 In substance the issues in the trial were the partial legal defences of provocation and diminished responsibility, doctrines which have the effect of reducing what would otherwise be murder to manslaughter. The onus of negativing the former beyond reasonable doubt lay on the Crown. The onus of establishing the latter, albeit only on the balance of probabilities, lay on the Prisoner. The jury's verdict does not disclose which of these issues was resolved in favour of the Prisoner or, indeed, whether both were. Indeed, these are matters I must decide - R v Isaacs (1997) 41 NSWLR 374 - recognising where the onus of proof of each lies and what the standard of proof of each is. 4 I acknowledge also that quite separately from these matters, before I can use any matter against the Prisoner I must be satisfied of it beyond reasonable doubt. In the resolution of these matters and those referred to in the preceding paragraph issues, it may be necessary for me to reach conclusions on incidental issues that arise. Except where those conclusions are essential to a finding which must be made beyond reasonable doubt, it is not necessary that those incidental issues are determined to that standard. Having stated this will be my approach, I shall not encumber these Reasons with frequent references to the standard or onus of proof. 5 The Prisoner was born on 2 January 1980. He became a ward of the State. He and the deceased had become acquainted at Central Railway Station. The Prisoner is recorded as lodging with the deceased in November 1995. During 1996 the Prisoner expressed a wish to live with the deceased and took up residence there in or about late August 1996. Representatives of the Department of Community Services visited and interviewed the deceased and had a police record check carried out on him and the Department formally recognised the deceased as the Prisoner's carer on 23 October 1996. I use the term "carer" advisedly. That is the term on a document signed by the Manager of the Bowral branch of the Department of Community Services. I am satisfied that in so doing officers of the Department felt that their hand was very largely forced by the Prisoner who had absconded on a number of occasions from where he should have been and, despite agreeing not to go to Mr Boyson's to live until all Departmental inquiries and processes were concluded, took himself there at the time I have indicated. 6 According to Dr Wong, a psychiatrist who interviewed the Prisoner for the purposes of the trial, the Prisoner told him that:- "He had been with Geoff, the deceased, for about 2 months. He spent most of that period on the street, using drugs and doing crime and spent very little time with Geoff. He used Geoff's place for drugs and was there only when they used drugs together… Geoff brought back drugs which he had confiscated from residents at the place he worked. They gave each other drugs. He said that was the basis of their relationship. He was adamant that he would not have gone to Geoff if he were not allowed to use drugs. Their relationship deteriorated after Geoff raped him, "maybe a week, maybe two weeks" before he was killed. He raped him when Tomi was using drugs and could not do anything about it. However, he did not want to tell me more about the incident. The next time he went back to Geoff was on the day when the killing took place. He did not have any food or clothing and wanted to go back to get his belongings before he moved to Wollongong. … When he went back, Geoff was using drugs and both of them used drugs together. Geoff was rubbing his crutch and leg and said he was turning him on. Tomi did not want the same thing (rape) to happen again and wanted him to leave him alone. He told Geoff he was getting something to eat and went into the kitchen. He sat there for 10 minutes, thinking of what to do. He just wanted Geoff to leave him alone. He got a knife from a knife holder next to the microwave…. He wanted to scare him so that he would let him leave and "the thing" would not happen again. As he went out Geoff was just standing up and waiting for him. He then came towards Tomi who stabbed him, just to scare him, he could not remember where he stabbed him." 7 Although there were differences Dr Canaris, another psychiatrist, was given a not dissimilar story. 8 The deceased had homosexual, if not paedophiliac tendencies. Although the documents themselves were not in evidence, there were found in his apartment what would seem to have been classified advertisements for two magazines - "Outrage" and "Campaign". Copies of those magazines were tendered and they clearly are directed to the homosexual members of the community. Also found was an index to advertisements in more common womens' magazines. The advertisements so indexed were of young children or babies, naked or semi-naked. Although there are aspects of the evidence which must cause one to consider the possibility that the Prisoner has or had similar tendencies, I am satisfied that he does and did not. This conclusion is supported by, inter alia, what the Prisoner has said after the deceased's death, by evidence from a Mr W with whom the Prisoner resided for a period, and by the absence from the numerous professional assessments of the Prisoner of any finding to the effect that he had. 9 In regarding Mr W's evidence as supporting the conclusion expressed in the last paragraph, I do not ignore evidence Mr W gave as to the desire and, at times, practice of the Prisoner to sleep in Mr W's bed. However I regard those matters as an indication of the Prisoner's need for affection rather than anything more. 10 I am satisfied that a week or two or thereabouts before 24 October 1996, the deceased anally raped the Prisoner while the latter was intoxicated on alcohol and/or drugs. Some time thereafter the Prisoner was at a squat in Parramatta with an acquaintance, Mr Stone. The Prisoner looked down in the dumps. Mr Stone tried to find out what was wrong and conversation which, despite Mr Stone's expressed doubts, I am satisfied occurred with the Prisoner along the following lines ensued:- PRISONER "What would you do if someone raped you?" MR STONE "In what way?" PRISONER "Rooted you and stuff like that?" MR STONE "I'd kill 'em" 11 On 24 October the Prisoner returned to Mr Boyson's unit. He said to the two psychiatrists that this was to collect some of his belongings that were stored there. There seem to have been such but be that as it may and despite what happened, I am not prepared to infer that the Prisoner went to the deceased's unit with any intention of harming the deceased. 12 Precisely what happened at the unit is not clear. Apart from the objective signs present when the police arrived 2 days later, one is largely dependent on what the Prisoner has said, either in cryptic accounts given within a few days of the deceased's death or to the psychiatrists on and after 30 April 1999 against the background of his trial. I am however satisfied that the Prisoner's account, which I find was given to Mrs Whitton on 28 October 1996, is substantially accurate so far as it goes. "Well, a while back Geoff got me stoned on drink and drugs and fucked me up the arse twice. Last Thursday, after I had drunk a half bottle of scotch, Geoff kept touching me on the leg and saying 'You're making me horny' so I got up and went to the kitchen and cut his throat and stabbed him a few times." 13 That he drank some whisky was also stated by the Prisoner to Drs Wong and Canaris. To the latter, the Prisoner said that he got really smashed. To Dr Wong the Prisoner said that the two were using drugs. 14 These references to what the Prisoner told Dr Wong and Dr Canaris make it appropriate at this time to say something about the reliability of such statements. Although venturing on matters logically dealt with below, it is appropriate to record that both psychiatrists formed the opinion that the Prisoner was suffering from an abnormality of mind. To the doctors the Prisoner indicated inability to remember in some areas and in a number of respects there are differences in the detail of the history the doctors were given. In the result, I am not persuaded that all the Prisoner told the doctors should be accepted, particularly where his account to one doctor is the only evidence on the topic. 15 Of the matters just mentioned, I am satisfied that the Prisoner would have had drugs if they were available but, in light of the fact that it he seems not to have mentioned taking drugs that day to Dr Canaris, I am not be prepared to find either that they were or were not. In light of the mention to Mrs Whitton of half a bottle of whisky, I find that the Prisoner consumed a significant quantity while in the deceased's company. However he told Dr Wong that he could finish 2 to 3 bottles a day and I am not satisfied that he was "smashed". Obviously that is not a finding that he was not. The probabilities are that the whisky was supplied by the deceased. 16 Dr Wong understood that the rubbing or touching by the deceased was of himself although according to what the Prisoner told Dr Canaris it was of the Prisoner. I doubt that it matters. I am satisfied that the deceased attempted to seduce the Prisoner. 17 When found, the deceased's body was nude and there is no suggestion it was not in this condition when the deceased was attacked. There is no evidence of when the deceased undressed, and some suggestion that he commonly adopted this attitude of nudity in his apartment. Nor was there any explanation given why, in light of the previous incident, the Prisoner participated in drinking or drug taking while at the deceased's unit. That said, explanation may exist in the Prisoner's lifestyle detailed above, or in his statements to Dr Wong that he drank heavily and could finish 2 to 3 bottles of vodka or whisky in a day. 18 The Prisoner went to the kitchen, took hold of a kitchen knife and attacked the deceased. The Prisoner inflicted a 135 mm cut to the deceased's throat, one stab wound to the head, penetrating the skull though not the underlying membrane, and four stab wounds to the upper right part of the deceased's back. These wounds varied in depth between 90 and 180 mm and three of them penetrated bones. All four penetrated one of the deceased's lungs and caused his death from loss of blood. The nature and location of the wounds lead to the conclusion that at the time they were inflicted the Prisoner had lost self-control. 19 From the injuries to the deceased, the fact his body was found in the kitchen and the distribution of blood in the unit, I would infer the attack occurred, at least in part, in the lounge room or thereabouts. 20 According to what the Prisoner told Dr Wong he unsuccessfully searched the unit for a key, took some clothes and the remains of a bottle of whisky he and the deceased had been drinking and left the unit by climbing over the balcony. I accept that this is what occurred. 21 At 9.32 pm on 24 October 1996, the Prisoner made a call to 000 from a public telephone close to the deceased's premises. In it he said something to the following effect:- "Hello (would I get) I'd like to report a murder at erm 11/3, London Street, Enmore. Anonymous caller. A murder someone's been stabbed." 22 At some time between about 1.00 am and 8.20 am on 25 October, the Prisoner left a message on the deceased's answering machine. The message was:- "Yeah, Geoff. Its me, Tomi. I'll be back home in a week. O.K. Bye." 23 In the period between the deceased's death and the evening of 26 October, the Prisoner again joined Mr Stone at the squat at Parramatta. On this occasion conversation to the following effect occurred:- Q What did he say to you? A That he killed someone because he got raped. Q What were the words he said to you? A He said "I done it." Q Were they the first words he uttered?: "I done it? A Yeah. Q What did you say in response to that? A "Done what?" Q What did he say? A "Killed the bloke I was living with because he raped me." 24 At about 7.25 pm on 26 October 1996 the Prisoner made another call from a public phone again some few blocks from the deceased's premises. In it the Prisoner said:- "Hello. There's been a murder at 11/3 London Street, Enmore. They've killed a person, erm, I dunno. I done it." 25 At about 7.30 pm on that day the Prisoner arrived at the block in which the deceased's unit was situate. In consequence of concerns held by people who worked with the deceased, the police were already there. In response to inquiry the Prisoner informed the police that he lived at unit 11 with Geoffrey Boyson. In the course of further questioning the Prisoner said that he had been camping for a week and had just got back. After a little time he went with police to the police station. Because of his age it was necessary for there to be present at any questioning an adult not connected with the police force. When the officer in charge of the investigation, a Detective Jackson, approached the Prisoner to tell him that arrangements in that regard had been made the Prisoner said "I stabbed him". Detective Jackson said "What?" and the Prisoner said:- " I stabbed him. I stabbed him 'cause he was fucking me up the arse." 26 On 28 October at the Bidura Children's Court the Prisoner made the statement to Mrs Whitton which I have recounted above. 27 I turn to the issue of provocation. PROVOCATION 28 Pursuant to s23of the Crimes Act 1900, an act is done under provocation where:- (a) the act is the result of a loss of self-control on the part of the accused that was induced by conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused; and (b) that conduct of the deceased was such as could have induced an ordinary person, not intoxicated, in the position of the accused to have so far lost self-control as to have formed an intent to kill, or to inflict grievous bodily harm upon, the deceased. 29 It was submitted on behalf of both the Crown and the Prisoner that I should find that the Crown had not disproved that the Prisoner's offence was committed in such circumstances. I so find. Indeed I am satisfied that the circumstances of the Prisoner's offence fulfil the criteria stated. 30 So far as paragraph (a) is concerned, I need add nothing to what I have said above. I should say more concerning the matters encompassed in paragraph (b). Any rape, be it of a man or a woman, is a gross violation of the victim. Although it is no longer a crime, anal intercourse is to many members of the community both revolting and degrading. It is even more so when it is inflicted without free and willing consent. In my view anal rape could well, in some circumstances, induce an ordinary person, not intoxicated, to so far lose self-control as to form an intent to kill, or to inflict grievous bodily harm upon the rapist. 31 Here of course, there was an appreciable passage of time - a week or two or thereabouts - between the rape and the deceased's death - time enough, it may be argued, for anyone's emotions to cool down. However one must also take into account the fact that the deceased displayed an indication of repeating his actions - conduct calculated to rekindle any adverse reaction in a victim. Furthermore, regard must be had to "the position of the accused". To put the provocation into perspective, to appreciate its content, extent and gravity, one must consider the position of the accused, including his "age, sex, ... personal attributes, personal relationships and past history" - Masciantonio v R (1995) 183 CLR 58 at 67. 32 "The position of the accused" is in this case, a matter of some significance. I will detail it more when I come to deal with his circumstances rather than the circumstances of the offence. It is sufficient for present purposes to say that he has had an exceedingly emotionally deprived background, in his early years was let down badly by those whose obligation was to care for him and, at the time of the offence had and had had so little in terms of personal relationships or achievements that to be anally raped was likely to be especially degrading and provocative. The prospect of being subjected to, or even a fitting candidate for, a second instance of anal intercourse may well not have been less so. 33 The need of the Prisoner for his belongings provides a sufficient explanation for his return to the deceased's unit. Not as readily explicable is his participating in drinking and, possibly drug taking while he was there. But that said, regard must be had to his past and these matters do not incline me to the view that the Crown has excluded the defence of provocation. 34 Given that these reasons are concerned with the question of sentence and not guilt, it is appropriate that I say something about the weight I am disposed to give to the topic of provocation. The myriad of circumstances to be considered in any case of provocation mean that it is difficult to compare quantitatively one case with another. However it is appropriate to say that, while I do not regard this case as in a worst category so far as the victim's conduct is concerned, I put it high on that scale and, when one has regard to the position of the Prisoner faced with that provocation, one where the provocation was very high. Furthermore, his history summarised in some detail below, makes his loss of self control much more easily understood and more excusable than in the case of the vast majority of the community who have far greater reserves of emotional stability to draw upon. DIMINISHED RESPONSIBILITY 35 It was submitted on behalf of the Prisoner that I should also find that Diminished Responsibility, as that concept was expressed in s23A of the Crimes Act in October 1996, has been established on the balance of probabilities. The Crown opposed such a finding. So far as is relevant, at the time s23A provided: "(1) Where, on the trial of a person for murder, it appears that at the time of the acts or omissions causing the death charged the person was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent cause of induced by disease or injury) as substantially impaired his mental responsibility for the acts or omissions, he shall not be convicted of murder" (but of manslaughter). 36 Both Dr Wong and Dr Canaris formed the opinion that at the time of his offence the Prisoner was suffering from an abnormality of mind which answered the description within that provision although they differed in their description of what it was. There is little which would justify rejection of the common view of these psychiatrists and indeed the Crown did not suggest that there is any. The sole aspect of the doctrine with which the Crown took issue was whether the Prisoner's abnormality of mind substantially impaired the Prisoner's mental responsibility for the acts causing death. 37 That is an issue on which medical evidence is not decisive. Indeed it has been said that "expert medical evidence is not really of great assistance in determining" it - Trotter (1993) 68 A Crim R 536. Nevertheless, in the circumstances of this case, it seems to me necessary to pay significant regard to the medical evidence, although I confess at the outset to having difficulty in accepting some of it. That difficulty does not arise through any preference for either Dr Wong or Dr Canaris as witnesses but rather from the content of what they said. 38 Dr Canaris thought that Prisoner's abnormality of mind substantially impaired the Prisoner's mental responsibility for the acts causing death. However, the weight I am disposed to give to this opinion is reduced by at least four matters in his own evidence. Firstly, I am disinclined to accept his diagnosis of Post Traumatic Stress Disorder, principally for the reasons advanced by Dr Wong in answer to some questions by myself and in particular the reason that there is no evidence that the Prisoner, prior to killing Mr Boyson, commonly re-experienced any traumatic event. Secondly, having examined all of the DOCS file at length, I am unpersuaded that in his past the Prisoner suffered anything like the amount of sexual abuse to which Dr Canaris seems to refer. I remain unpersuaded that he suffered any, a conclusion which echoes what the Prisoner told Dr Wong although I have arrived at it by a different route. 39 In that regard, it is proper to recognise that there are a significant number of references to sexual abuse within the documents in the Department of Community Services (DOCS) file. However a close and chronological examination of them provides a good illustration of what happens to an account when it passes through a number of hands. References to primary material tells a story different from later versions. (Although I do not rely on the fact - because I have no need to do so and because there is something to be said for the view that the mind may bury traumatic events - I note that the Prisoner told Ms Jones of the Department of Juvenile Justice that he had no memory of sexual abuse.) 40 Thirdly, in response to some questions from me, Dr Canaris indicated that if conversation to the effect of that deposed to by Mr Stone had occurred, he would have some doubt as to the significance of the defence of diminished responsibility "not because of the conversation per se as such, but because I am now offered a history very inconsistent with the history that the defence case has which makes me wonder whether I can believe what he is telling me. You know, I have to then ask myself: well, is he telling me about a pack of lies about his mental condition." 41 Fourthly, a little later Dr Canaris indicated, in effect, that if the events leading up to the killing of the deceased included the suggestion by Mr Stone to the Prisoner of killing the deceased, that suggestion may have influenced the Prisoner towards forming an intention to kill and that possibility reduced his confidence in any diagnosis of operative diminished responsibility. In so expressing Dr Canaris' conclusion, I have departed from the terms of statements to the effect "I would find it an uphill battle to come up with diminished responsibility" but because of the less than perfect clarity in the questions and answers on this topic I think what I have said more accurately expresses the tenor of Dr Canaris' evidence. Dr Canaris did agree that any judgment of the impact of Mr Stone's statement to the effect "I would kill him" on the Prisoner depends to a significant degree on what view one forms as to the details of the events that follow. He went on to say that the impact on the Prisoner depended also on his state of mind at the time of asking "what would you do if someone were raping you" and what he was actually thinking at the time of the killing. On that latter topic, the only express evidence is what the Prisoner told the two psychiatrists and Mrs Whitton. 42 Dr Wong was of the view that the Prisoner's abnormality of mind did not substantially impair his mental responsibility for the acts causing death. He expressed his conclusion in these terms:- "… If Tomi's version is accurate, his ability to exercise control over his physical acts at the time of the alleged killing did not appear to be impaired. According to him, he sat in the kitchen for 10 minutes pondering what to do before he committed the stabbing. Admittedly, the deceased had 6 stab wounds whereas Tomi did not suffer any significant injury and told the police the deceased did not fight back. However, I do not feel we can conclude from this that the attack was one committed under impaired control. I have some difficulty in convincing myself that the version of events given by Tomi is a reliable one… However, on the basis of such information as is available to me, I have no reason to believe that his ability to exercise control over his physical act was significantly impaired at the time. He did not appear to be unduly prone to impulsive behaviour. Even when he was very keen to live with Geoff, he was prepared to wait until the necessary arrangements were made." 43 The statement in the last sentence is wrong. Although the Prisoner said that he was prepared to wait, a consideration of the Department of Community Services File relating to the Prisoner shows that he did not. The file also refers to incidents which to my mind do indicate impulsive behaviour, although whether such incidents were sufficient in number or degree to indicate that the Prisoner was unduly prone in that regard is not a matter which was canvassed or on which I find it necessary to reach a conclusion. 44 In light of the Prisoner's statement to Dr Wong of spending some 10 minutes in the kitchen contemplating his course of action and his failure to give evidence disavowing or explaining that, I must, I think, proceed on the assumption that some such event may have occurred. I say that notwithstanding I share Dr Wong's reservations concerning this matter and I certainly do not regard the 10 minute estimate, given some years after the event as in any way reliable. However, Dr Wong does not address the difference between the Prisoner's actions or thought in the kitchen when his control may not have been impaired and his actions in stabbing the deceased, when, judged by the injuries, in my opinion self control was impaired. This omission makes me unwilling to simply accept Dr Wong's conclusion. 45 I am thrown back, it seems, largely onto my own judgment on the issue. The conclusion at which I have arrived is that the Prisoner's abnormality of mind did substantially impair his mental responsibility for the acts causing death. My reasons are as follows. Firstly, the Prisoner did have an abnormality of mind. Dr Wong described it as "gross psychiatric disturbance". Dr Canaris described the Prisoner as "a profoundly disturbed individual (who had suffered) an innumerable series of severe psychological traumas". The Prisoner's history and other psychiatric and psychological assessments to which I refer below satisfy me that these are not overstatements. Secondly, that history and those assessments indicate that the Prisoner was very ill equipped to cope with stress which impacted on him personally. It is inescapable that this deficiency was part of his abnormality of mind. Thirdly, even if his relationship with Mr Boyson was primarily dictated by a common interest in drugs and the freedom which Mr Boyson afforded the Prisoner, as the latter seemed to indicate to Dr Wong, I have no doubt that Mr Boyson's actions were but another of the many and gross disappointments by which the Prisoner's life to that time had been dominated. Fourthly, it was against this background that the Prisoner did lose self control. 46 In this concomitance of circumstances it seems to me probable that not only did the Prisoner's abnormality of mind contribute to the acts causing death but did so to such an extent as to substantially impair his mental responsibility for the acts causing death. 47 It may not be inappropriate to observe that to some degree, and despite my reservations, this chain of reasoning bears some similarity with that of Dr Canaris where he said:- "I also believe that your client could avail himself of the defence of diminished responsibility. Even if your client may have seemed cool, calm and collected on the day in question and over the next few days, the anger he would have experienced would have been far in excess of anything which the putative normal person could expect to control. Furthermore, as a profoundly damaged individual, he would have been far less equipped to contain such anger that an ordinary person who had hitherto led an ordinary life. His capacity to judge his situation correctly and to control his impulse to kill would have been substantially impaired. Unlike an ordinary person, his personal boundaries would have been grossly disrupted by the cumulative impact of childhood sexual and physical abuse, gross emotional deprivation, institutional abuse and life on the streets." 48 In coming to the view I have, I do not forget that the Prisoner carries the onus on the issue of diminished responsibility, that he did not give evidence during the trial or on sentence, his statements to the effect that he approached the deceased with a conscious plan of action in mind - "to scare him" - that he had been drinking and perhaps drug taking, and seems to have exhibited some thought in and about leaving the deceased's unit. Nevertheless, my conclusion on this topic is as I have indicated. 49 So far as the Prisoner's actions in and about leaving the unit are concerned, the Crown placed reliance on the Prisoner's actions after stabbing the deceased in, inter alia, collecting some of his clothing, the bottle whisky and a bag and in then climbing down a series of balconies from the deceased's unit to the ground. These actions demonstrated, so it was said, possession of the Prisoner's faculties. The latter proposition may be accepted, although questions arise whether they were in a fully normal state and whether the killing of the deceased may not have had the effect of sobering the Prisoner up to some extent. And it must also be borne in mind that the Prisoner left his wallet and watch in the deceased's bathroom - an action or omission calculated to identify him and indicative of some degree of haste, thoughtlessness or panic. I do not find in the Prisoner's actions at the unit after the deceased's death any guide to the issues which I have to decide. Subjective Circumstances 50 I turn to the subjective circumstances of the Prisoner. His history prior to going to live with the deceased is the subject of extensive record in files of the Department of Community Services. It makes appalling reading but bears detailed reference. 51 The Prisoner was born on 2 January 1980. His mother was an alcoholic and had been one while carrying the Prisoner and his sister Suzie born in May 1978. Departmental records show that on a number of occasions during 1980 when officers of the Department visited the home, they found it littered with rubbish, food scraps, beer and other alcoholic drink bottles, cigarette butts, unwashed plates and cutlery and clothes. 52 In June 1980 the Prisoner was hospitalised for severe nappy rash after his mother was found unconscious outside a local hotel. A Dr Waterlow recorded that between the Prisoner's birth and 18 June 1980 the Prisoner presented as generally unkempt, not well cared for and a very unhappy baby whose mental age was beginning to lag. When admitted to hospital at that time he lay miserably in his cot and did not interact with staff. Tests carried out showed there was then considerable delay in his personal, social and language development. His development advanced whilst in hospital but following discharge he showed signs of regression. 53 In August 1980 the Prisoner's mother left the children with her parents and disappeared. In that month the two children were placed in an institution when their mother and grandmother were found in a drunken disorderly state. After 3 weeks in the institution a marked improvement was observed in the case of both children. In September 1980 it was recorded that Suzie suffered from late development in consequence of the drinking habits of her mother during pregnancy, was exceptionally small, was unable to speak and uttered only single syllables. The Prisoner's development was noted also to be slowing. On 24 November 1980 the Prisoner was recorded as being considerably behind developmentally. 54 The Prisoner was made a ward of the State on 11 November 1980. On 8 December 1980 he and his sister were placed with foster parents. The considerable criticism of these persons in the Departmental files to which it will be necessary to refer, and the absence of any opportunity to respond to that criticism are among the reasons it is appropriate to refer to these persons as Mr and Mrs B. 55 Apart from some emotional instability during the settling in period the Prisoner apparently settled down well initially and showed considerable improvement in his developmental level. However in March 1981 he began to suffer convulsions intermittently. Later Dilantin was recommended, and in October 1983 it was noted that he had been free from seizures for the last few months. In May 1981 he was recorded as having temper tantrums and breath holding attacks. 56 In 1984 and 1985, the Prisoner was seen by a Mr Robertson, a psychologist. He recorded a good relationship and communication between the Prisoner and Mr and Mrs B and that the Prisoner appeared to be stopping a habit of putting things in his mouth. In July 1985 Mr Robertson recorded that he had seen both children fairly regularly and the initial improvement appears to have remained. Because Mr and Mrs B were concerned about unusual behaviour of both children - Suzie's overt sexual behaviour and the Prisoner's propensity towards eating almost anything - Mr Robertson recommended thorough psychiatric and neurological assessment. 57 In June 1985 the Prisoner's kindergarten teacher for the year recorded his eating of glue, plasticine dirt, plant, blue tack, pencils and crayons without any apparent fear of harming himself and as an almost self punitive attention getting device. He was often disruptive to class routine due, she felt, to a very limited concentration span and thereby alienated himself from others. She recorded the depositing of urine and faeces in wash bowls and that he didn't seem to register shame or fear of reprimand. Asked why, he would reply, "I don't know." then a strange smirk would appear on his face. He had been reprimanded for injuring other children with sticks and throwing stones and again showed no shame, fear of reprimand or awareness of the wrongness of his actions. 58 In August 1985 the Prisoner was the subject of assessment and a detailed report from a paediatric neurologist at the Westmead Neurological Centre. The history recorded, given by Mr and Mrs B, included the statement that a major problem was the Prisoner's self destructiveness. He would hang upside down on a monkey bar and fall directly on his head, bites his fingers, gouge his eyes and had been seen to rub his feet into glass on the floor: He constantly talked about death and tried to kill or hurt small animals and insects: He ate inappropriate things including cockroaches: He was constantly disruptive in class with hyperactive behaviour and poor concentration: He attempted to attract attention by putting his head in the toilet bowl and urinating on the floor: He was not very affectionate and indifferent to praise or physical or verbal punishment: Convulsions were generally but not always provoked. 59 There were no focal signs on neurological examination. The final paragraph of the report reads:- "In summary, Suzie and Tomi are both extremely disturbed children who came from a very deprived background. Their behaviour is typical of that classically described in children with this degree of deprivation including excessive eating of normal and abnormal things as well as the lack of affect and any sense of guilt or responsibility. I should think that the prognosis for the children from a psychological point of view is very dismal indeed. Unfortunately, the foster parents have been trying to tell the Youth and Community Services for many years how disturbed these children are and have gotten very far (sic). I certainly do not think there is any evidence that there a neurological disease (sic) except for the brain damage and clumsiness which are the result of the alcohol exposure during pregnancy." 60 Departmental reports of October 1985 record the making of a decision to remove the children on the recommendation of a social worker and Dr Dudley of the Department of Psychiatry of the Royal Alexandra Hospital for Children, and that Mrs B said that she could not cope with Suzie for another 3 months. By November Mrs B is recorded as saying that if alternative placement was not arranged within 3 days, Suzie would be left at the office of the Department of Community Services. On 14 November 1985 Suzie was brought to the office and then taken to Minali, which was apparently a departmental home. 61 An assessment of 1 November 1985 by Dr Dudley refers to Suzie having foetal alcohol syndrome but both children having "gross behavioural, emotional, educational and cognitive problems … explicable on the basis of the grossest abuse and disruption of attachment in their early years". The Prisoner's problems, I infer as described by the Bs, are noted as encopresis (depositing faeces in abnormal places), pica (eating of non-nutritive substances), self injuring and dangerous behaviour, destructive behaviour, some precocious sexual interest, and lying. The report continues "The Bs have attempted to restore the deficiency with little support" and that further neuro-psychological assessment is needed as is residential help, and that this was being sought for Suzie at Bernardo's and for Tomi at Arndell (I infer, another departmental institution). 62 In December 1985 a report of a clinical psychologist. Mr Said, recorded:- "Tomi's general intellectual ability is clearly in the average range and his ability to learn, retain and recall auditory verbal material is also normal. However on the McCarthy memory and motor scales (which measure attention and immediate recall) Tomi scored below the normal range and these scores indicate problems with attention, concentration and co-ordination. There is no indication that these problems are caused by organic impairment and they are most likely caused by disruptive early development and current emotional problems." 63 The Prisoner and his sister were the subject of a report by Mr Defina, another psychologist, sometime after 3 March 1986. This document refers to reports on file indicating Mrs B had unrealistic expectations and her management of children was incompetently inappropriate and the behaviour of the children deteriorated. On testing Tomi was well behaved but clumsy and possibly coached. He displayed attachment to Mr B. Tomi perceived Mrs B as being ambivalent towards him. One test indicated Tomi had a pre-occupation with being punished often over trivial incidents. He saw himself as being isolated within a fairly hostile environment. "Taking (other tests) into account, it would appear that Tomi feels quite insecure in this present placement. The weight of evidence suggests that this is due to an unsatisfactory, punishing relationship between himself and the Bs rather than to any fears he may have of being removed from their care." 64 Tomi's general intellectual abilities were diagnosed as in the average range but he displayed poor concentration and co-ordination. The report continued:- "Tomi is now nearly 6 and has been in the care of the Bs for more than 5 years. The weight of psychological research demonstrates clearly that early trauma, on its own, does not lead to irreversible damage. It is only when that trauma is just the first link in a whole chain of unfortunate experiences, or when the child is subjected to some continuing pathological influence that remains throughout a large part of childhood, that more permanent effects are likely to emerge. Clearly, then, if Tomi had been receiving appropriate, quality care, his condition should have improved rather than deteriorated as it has. … There were implications of possible sexual abuse. I believe the assessment by Arndell (apparently another departmental home) also raised this possibility. I stress that the evidence for possible sexual abuse is implicit only and does not constitute grounds for believing or assuming that it has occurred. It appears that Tomi's present condition is likely to have had its roots in early trauma, but that the effects of that trauma have been maintained and probably exacerbated by the care he has received since being placed with the Bs. … Reports on file indicate that Mrs B acted in a manner contrary to that required by the therapists. … The overwhelming need in this case is for Tomi to undergo therapy. … It is more important to maintain the relationship between Suzie and Tomi than the relationship between Tomi and the Bs. … I see no alternative in this case than to remove Tomi from his present placement." 65 On 4 March 1986 the Prisoner was removed from the Bs and taken to Minali. By June 1986 he was residing at the Bernardo's Lindfield unit for severely emotionally disturbed children. There his conduct seems to have improved although in April 1987 it was recorded that his "behaviours are still inconsistent and do not appear to follow a significantly predictable pattern" and "When Tomi first entered the unit he was very closed and hostile towards physical affection. … He will now allow people to give him a cuddle." In that month he and his sister were then placed with another foster carer, Miss W. 66 A report of 10 June 1987 indicates that this placement seems to have then been progressing well although much work remained to be done. A note of 4 April 1987 and an undated application to the Director General of Health and Community Services for approval to continue paying a triple boarding out allowance but which bears a supporting recommendation dated 21 March 1988 says, "the two children are very difficult management problems who require intensive and continuous care which is far beyond that required for a ward in normal circumstances". The departmental files seem to contain little by way of records in this June 1987 to February 1988 period. Minutes of a case conference on 15/3/88 seem to be missing although a note on the submission to which I have referred records that at the case conference, restoration in March/April was still the confirmed case plan. 67 The Departmental records indicate that by 1986 the Prisoner's natural mother was leading a much more stable life and in February 1986 was coping admirably with 3 other children. Restoration to the natural mother was recommended if that was in the interests of the Prisoner and Suzie. This aim seems to have played a large part in Departmental thinking from that time onwards and on 18 March 1988 restoration occurred. This was despite the matters referred to in the preceding paragraph, despite the enormous increase in pressure 5 children rather than 3 would impose, and a case conference note on 3 March 1986 that the Prisoner's mother appeared to be avoiding much of the responsibility which caused the Prisoner and Suzie to become wards and for the lack of contact which followed. It is however appropriate to record also that on 21 August, the District Officer observed that the mother was increasingly taking responsibility for these events. 68 Both children were discharged from the Minister's guardianship in November 1988. However by March 1990, the Prisoner's conduct had deteriorated sufficiently for him to be referred by a local doctor to the Fairfield Community Health Centre. By November the natural mother and her husband were unable to cope and in December it was recorded that the Prisoner was very emotionally disturbed, running away and placing himself in danger and sniffing turpentine or some other substance. His behaviour at school led to him being suspended. On 14 December 1990 he was again placed at Minali. 69 Another psychologist, Barbara Kennett, examined him in January 1991. She reported:- "(Tests) indicated that Tomi has a poor self image … . He did not have his dependency needs met when younger and this means that he is unable to trust adults. He views the world as a rather threatening place and certainly nothing in his history has assisted in disabusing him of this fear. Much of his behaviour is attention seeking which he learned during his first six years of life. When Tomi feels secure and is not pressured into showing emotional responses his behaviour falls within the normal range. This has been seen several times, when he was with the (W)s' (sic) and again at Minali. However, when placed under any stress he responds with the earlier noted aberrant behaviours. Tomi lacks the personal resources to deal with emotional pressures." 70 The minutes of a departmental case conference of 11 February 1991 record that Tomi's parents - (This probably means his mother and her husband - not the Prisoner's father.) - were agreeable to wardship and were unable to care for him. It is also noted that the "any move for Tomi to other alternative care should be his first and last placement due to his fragile emotional state and vulnerability …" 71 On 23 April 1991 the Prisoner was again declared a ward under the Children (Care and Protection) Act 1987. On 29 April he was transferred to Renwick, a departmental institution at Mittagong. While there he absconded on a number of occasions in the company of other boys, on one occasion being found at Kings Cross. In December he was informed by his step-father that he could not go home even for a visit and his natural mother refused to have him home for Christmas. In a report of 11 March 1992, Dr Moore, a psychiatrist, was to refer to this incident as one which was "following his ultimate rejection in the Christmas holiday period". On 16 December 1991 he was involved with the theft of a bag on a beach and on 18 December he burnt his arm badly with a cigarette lighter. 72 In January 1992 the Prisoner was involved in two offences of breaking entering and stealing and one car theft. A file note records that he was angry, hurt and disappointed that, despite some promises by his mother, he could not go home - a circumstance for which he blamed his step-father. Tomi requested the phone number of his natural father who he believed could care for him. (The pathos in this request becomes apparent when it is recognised that there seems to have been no contact between the two for many years.) 73 The note records:- "Cottage staff report Tomi's behaviour continues to deteriorate and he is now openly defiant, verbally abusive and sullen when checked. … Intense therapy is vital, but ineffective until a permanent placement is found. …Stability, security and a clear map of his future is essential to him at this point of time." 74 I have referred briefly to a report of 11 March 1992 by Dr Marilyn Moore. The report bears further attention. In it Dr Moore records:- "… He was uncertain why he had come to see me and seemed indifferent about it. He showed no spontaneity or interest in anything. He replied woodenly and with little reflection, to questions. As the interview progressed he smiled occasionally. He showed no anxiety, indeed he appeared to be affectively constricted. He told me that nothing makes him happy or sad "I've been through so much that I don't know who I feel any more." He used to get angry with his step-father but he doesn't now - "I don't care any more". … Tomi maintained he would not remember any one special from any of his placements. He does not care for any one in particular at Renwick. Concentration and attention were sustained throughout the interview. Tomi seemed to be of average intelligence. Tomi had been severely emotionally deprived for much of his life. … His view of his mother seems ambivalent with a tendency to idealise her in her absence, tempered by the realism of being with her. Contact with her has been erratic and unpredictable so that Tomi does not trust others. I do not think that Tomi has an internal concept of a family. Apart from his brief burst of self-destructiveness and antisocial activity following his mother's latest unexpected rejection of him, Tomi has showed least emotional disturbance when placed in an environment where there are no emotional expectations placed on him e.g. at Minali and Renwick. His behaviour has settled again at Renwick. Given his history, I do not believe that he would do well in a normal family setting where there would be emotional expectations of him. He would be very reluctant to trust and would be likely to display some anxious needy behaviours again, (such as pica or stealing). The possible advantage of gaining some family life needs to be weighed up against the stresses for him of such a placement which might well end in yet another rejection for him (because his needy behaviours are aberrant). He does not seem to be clinically depressed, rather he has an "empty" quality about him. He is likely to develop a personality disorder, possibly of an avoidant type." 75 File notes of 1 and 19 June 1992 written by the department's District Officer record that "Tomi appears to be more confused and distressed about his current situation and his mother's refusal of contact than ever. He seems fearful of his future, which at this stage is still uncertain." and that "Tomi's sense of loss and grief re his family are, at times, quite overwhelming for the child, and he needs to be encouraged to vent his anger and despair. Within the last week we have been advised that Turner Cottage (where the Prisoner was living) is to close in the next few weeks and Tomi has been quite devastated by this news and insists he must stay with his house master … and the other Turner boys - 'quite interesting for a child who lacks attachment/significant others' (sic)." 76 Throughout 1992 up until September there were numerous instances of absconding and other significant misconduct, including stealing. On at least 2 occasions he went to his natural mother. She instigated his return and reports indicate that he was somewhat traumatised by what seemed to be double messages from her. In October Jackie Cope, a psychologist reported, inter alia, that "In the absence of his father Tomi seems to have idealised his image of his father. "Tomi appears so desperate to have someone to care for him that he fantasises about attaching to a variety of Aboriginal or "Street People". … "Tomi is desperately searching for parents who will care for him." 77 In December 1992, apparently at the instigation of the department, the Prisoner commenced to spend weekends with Mr W who lived in the highlands south of Sydney. On 13 January 1993 he was discharged from Renwick into Mr W's care. Although as might be expected there were some difficulties, things seem to have gone fairly well during 1993. However a report on file dated 1 July 1994 reads:- "Tomi became very aggressive. (Mr) W distressed - Tomi threw tools from roof - wants to move as sick of chooks and (mr W) - (Mr W) constantly touched Tomi - unable to detach himself emotionally - he should give Tomi space." 78 Later that month the Prisoner received a letter from his mother which concluded "Lots of Love" and he absconded, though not necessarily in that order. A report of 22 July 1994 records that he had been indulging in bouts of attention seeking behaviour at intervals of approximately 3 months since his placement, that this behaviour had recently escalated and included setting fires, destruction of property, some violence and stealing. On 26 July he was involved with others in throwing rocks at glass doors and windows belonging to the St Vincent de Paul society, causing $2,000 worth of damage. On 6 August he was reported to be sniffing again. On 9 August he was asked to leave a recreation room at Minali. He declined, kicked a plate glass door, then picked up a concrete slab and threw it through another plate glass door. He was again charged. He absconded but after a few days gave himself up to police. 79 In early August 1994 Barbara Kennett prepared another psychological report. In it she records that that during the Prisoner's second visit to Mr W in 1992, the Prisoner had asked Mr W if he would adopt him. She also records that after the period with Mr W, Tomi settled into Minali and staff reported that he was generally co-operative and pleasant though reserved. He showed little affect until a letter from his natural mother around 24 July when he became very upset and angry asking "what right has she to get to walk back into my life after ignoring me for years?". He was still very angry on 26 July 1994 when he damaged property of the St Vincent de Paul Society, tried to set fire to some toilets and damaged two cars. Other observations made in the report were:- "As with his previous testing Tomi related easily to the examiner on a very superficial level. However it was difficult to establish any real rapport with Tomi as his general affect is flat and passive. "Tomi had very good attentional skills and his approach to tasks is considered and methodical. He requires no encouragement to continue when items become difficult as he is self motivated to persist. "…. Tomi retains his fantasy of a perfect family life and still wishes to be part of that family with both a mother and a father. But as has been seen from his last foster placement, Tomi cannot handle the closeness associated with family life. … "Despite Mr W's personal efforts to provide Tomi with a safe, warm home life without emotional strings attached, by definition the expectation was there that Tomi would respond appropriately. Tomi realised he wasn't able to respond even though he hasn't acknowledged this fact and thus wanted the pressure removed by leaving the placement "… (Tomi) has made considerable personal gains over the past couple of years but he is still immature. He continues to have that "empty quality" about him that years of neglect and abuse have effected. This cannot be "made right" by emotional input from others as Tomi is unable to respect or respond appropriately. "As much as Tomi wants to be placed with other foster parents, this would not be in his best interests, as the anxious, needy behaviours which can display (sic) would surface as soon as he was placed under any emotional stress." 80 On 29 August 1994, one may infer in consequence of one of the malicious damage incidents to which I have referred, the Prisoner was placed on probation for 9 months on condition he be of good behaviour. On 14 September he was again formally made a ward. His behaviour over the next 9 months or so seems to have deteriorated significantly. There are reports of him absconding, becoming intoxicated on drink and drugs, inhaling lighter fluid, self-mutilating and stealing cars or from them. He was picked up by Flemington Police at the home of a paedophile. He made contact with two other adults who indicated some interest in adopting or caring for him. One of these also seems to have been a paedophile. A report of 23 June 1995 records that the Prisoner said that he would like to live with his sister and his second choice was to live on the streets. One of 16 July 1995 records a chance meeting between a youth worker and the Prisoner who said he was stealing car radios and swapping them for marijuana. 81 In late August 1995, the Prisoner arrived at Mr W's home and asked for another chance to live with him and go to school. Mr W indicated that he was happy to give the Prisoner a second chance if he was sincere. The department approved. A detailed school report of 11 October 1995 records 50 out of the 56 classifications given as satisfactory or good or excellent. However by that time there were again indications that the placement was breaking down. The Prisoner had said that he only returned to Mr W so he would not get locked up and felt Mr W's place restrictive and did not wish to stay. Somewhat inconsistently, according to notes of 26 October 1995, the Prisoner was sleeping in Mr W's bed again despite efforts by Mr W to get him back to his own bed. (Professor Hayes, called during the proceedings on sentence, clearly had serious reservations as to the adequacy of Mr W's responses to the Prisoner.) 82 A file note of 22 November 1995 records that the Prisoner had been lodging of late with the deceased. The Prisoner was advised that the Marrickville Community Services Centre would facilitate the Prisoner's placement with the deceased after the Prisoner's 16th birthday if that remained his wish. A later note of 17 January 1996 records that "it was pointed out to Tomi the last time he was on the run and spent time with Geoff, this person who allegedly is responsible, failed to notify the Department, allowed Tomi to roam the streets day and night". 83 On 22 November 1995 the Prisoner returned to Mr W's and seems to have continued there until Anzac day in 1996. He visited the deceased in Sydney, failed to return and disappeared until 8 June when he called Mr W asking if he could return. On 11 June he arrived saying he was back to stay. However by 24 June Mr W demanded that he leave and arrangements were made for the Prisoner to stay at the department's Bowral refuge pending completion of inquires into Mr Boyson's fitness. 84 In early August 1996 the Prisoner collapsed and was taken to hospital with alcohol intoxication. On 22 August he absconded and went to Mr Boyson's unit. He said he intended to stay there. On 1 October 1996 the Prisoner and the deceased collected the Prisoner's belongings from Bowral. 85 The above summary of information contained in the departmental files is by no means comprehensive. There are, for example, reports which show the Prisoner at times having tried hard with school work, possessing good verbal and social skills, could be clear and assertive and had performed reasonably well. There were notes that his positive points were the enjoyment of gross motor skills and challenges, liked to be doing things and enjoyed positive reinforcement and praise. At times his behaviour was excellent. Other records show that he had been disruptive far more often than I have indicated. At times he was noted as aggressive although there does not seem to be any record of significant violence beyond that to which I have referred. He displayed an unusual attitude of not caring for toys or clothes. However the summary I have given is enough for present purposes. 86 Additional material is to be found in the reports of Drs Wong and Canaris. It is sufficient if I quote parts of Dr Wong's assessment- "He has marked emotional coldness, lack of empathy and shallow affect. This is an observation which has been referred to, in one way or another, by almost all the professionals who interviewed him. … At no time was I able to detect any of the warmth and empathy that I would normally expect in interactions with a fellow human being. I consider this abnormal, even after making due allowance for the fact that he is amidst his trial for murder… Probably as a result of his emotional callousness he had a lot of difficulties whenever emotional demands of any kind were put on him. This is another recurrent theme that emerges on reading the various reports on him… In summary, Tomi has gross emotional coldness, shallow affect and lack of empathy, a persistent failure to conform to social norms, a reckless disregard for the safety of others and lack of remorse. Taken together, this is indicative of gross psychiatric disturbance. … Tomi had suffered gross neglect, both emotional and physical, in the first year of his life … While emotional deprivation and/or sexual abuse may certainly predispose to the development of personality disorders or other psychiatric abnormalities in later years, this is not invariable and a person might emerge relatively unscathed. I therefore base my diagnosis on the abnormalities he manifested around the time of the alleged offence, rather than on the presence of events which may predispose to the development of such abnormalities." REMORSE 87 I am satisfied that the Prisoner has experienced genuine and significant remorse for what he has done. The timing and terms of his second 000 phone call, combined with the fact that he then turned up at the block in which the deceased's unit was situate some 5 minutes later seem to me to argue compellingly in this direction. His early statement to police officers that he had stabbed the deceased argues in the same direction. 88 In arriving at the conclusion I have, I am not unmindful that the Prisoner left a message on the deceased's answering machine which was clearly directed to providing evidence of an alibi and told a similar story of having been on a camping trip when first questioned. I accept also that at least in part, the idea of turning himself in was put in the Prisoner's mind by Mr Stone and that the Prisoner is reported to have said on at least one occasion that to return to Mr Boyson's unit he must have forgotten Mr Boysen's death. Although it is consistent with what Ms Jones wrote in her Department of Juvenile Justice report, I acknowledge that my conclusion is inconsistent with the view of Dr Wong at, for example page 445 of the transcript. 89 And I do not suggest that the Prisoner's remorse is, or has always been unqualified. He has expressed a view to the effect that he eliminated a "faggot" and may well regard or have regarded the deceased as in part the author of his own misfortune. Evidence of those who have discussed with the Prisoner the events of 24 October 1996 suggest that he may not yet have mentally faced up to the full circumstances of what occurred. However the actions of the Prisoner to which I have referred in paragraph 86 speak loudly. MISCONDUCT SUBSEQUENT TO ARREST 90 After his arrest on 26 October 1996, the Prisoner seems to have been in custody till granted bail by Bruce J on 18 November 1996. Conditions of the bail were that the Prisoner was to reside at Mark David Farm at Sutton Forest, not leave the farm except in the company of an employee of that institution, not use illegal drugs or alcohol and report to police. 91 On 18 August 1997, the Prisoner threw a piece of fencing wire onto power lines to arc them out. One wire broke, starting a fire. The Prisoner absconded but was found 1km up the road. 92 In July and again on 25 August, the Prisoner's natural father visited him. The visits are recorded as having gone well and that on the second occasion his father quietly chastised the Prisoner for starting the fire. On 29 September his father, step-mother and 2 step siblings visited again as arranged. The Prisoner disappeared when he saw the car coming and did not return until after the family had left. 93 In October 1997, the Prisoner went to a fuel bowser, emptied fuel onto the ground and lit it. It would seem that because the bowser was locked, he was able to obtain only a small quantity. His co-ordinator is recorded as believing the Prisoner engaged in these actions because he was being moved to another unit for a 2 week drug & alcohol program. 94 Reports in January 1998 were generally favourable. One recorded that the Prisoner's "at risk" behaviour such as fire lighting seems to have abated. 95 Putting aside the matters I have mentioned some of which may fall into this category, there have been two occasions when the Prisoner has breached his bail conditions. One involved a failure to report on one occasion but there is nothing to suggest that this incident is presently significant. The other was when he was allowed by a youth worker associated with Mark David Farm to be unsupervised within ready distance of a liquor outlet. The Prisoner purchased alcohol and drank a significant quantity. There is some evidence that there was another breach also involving alcohol although, in light of Father Rileys' evidence, I remain unpersuaded of 3 breaches. 96 The incident mentioned was reported and the Prisoner arrested and detained at Kariong for some little time. On 20 May 1998 bail was again granted by this Court. Apart from the fact that the institution involved was to be the John Miller Farm, the conditions were, so far as is presently relevant, the same as had been imposed by Bruce J. ANTECEDENTS 97 According to the report from the Department of Juvenile Justice put before me, the Prisoner had the following history of offending:- Date Court Offence Outcome 13.03.92 Moss Vale Take and drive conveyance. Recognisance without supervision 12 months Break and enter 29.08.94 Lidcombe Malicious injury Probation with supervision 9 months 28.04.95 Bidura Carried in conveyance Probation with supervision 10 months 27.06.97 Bidura Break and enter Probation with supervision 12 months 98 The only conviction recorded in the report of the Prisoner's antecedents which was tendered is one which occurred on 27 June 1997 for an offence of breaking entering and stealing on 14 October 1996. The Prisoner was placed on 12 months probation. I infer that this is the fourth of the offences referred to in the Juvenile Justice report. The effect of s15 of the Children (Criminal Proceedings) Act is that I should not take this offence or any of the other convictions to which I have referred into account. Given firstly the difference in nature of the offence for which the Prisoner now stands for sentence and these other matters and secondly, the general history and circumstances of the Prisoner otherwise, including his history since October 1996, I would not in any event have regarded these convictions as having any impact of present significance. OTHER MATTERS 99 During the course of proceedings on sentence a report as required by s25 of the Children (Criminal Proceedings) Act was tendered and evidence given by one of its authors, Ms Jones. Later, the co-author, Ms Duncan gave evidence. In the report, it was said that the Prisoner's attitude and beliefs were not characteristic of an individual who possessed anti-social beliefs to a significant degree, that he demonstrated a level of insight into his offending behaviour and was responsive to treatment and intervention; he appeared to have a high degree of impulse control in relation to anger and stress. Nevertheless, it was suggested that, if the Prisoner were not sent into custody he participate in a Violent Offenders' Program, one Ms Jones described as a program for serious and repeat offenders. Although I do not need to, and in consequence, do not rely on the fact, the authors of the report suggested that the Court consider imposing a community based order. 100 On behalf of the Prisoner evidence was called from Professor Hayes, the head of the Department of Behavioural Sciences in Medicine at the University of Sydney, and from persons associated with Youth off the Streets Inc, the organisation which conducts the homes at which the Prisoner has been residing since his arrest. Though there were some minor differences, I accept generally what these witnesses have said. 101 Professor Hayes observed that the Prisoner's presentation was in marked contrast to how his appearance as recorded by Drs Canaris and Wong and that he smiled and laughed and made eye contact appropriately through his interview with her and appeared enthusiastic when he spoke of his present and future life. Professor Hayes also said that the Prisoner's profile on a Personality Assessment Inventory test indicated that he was not suffering from any psychiatric symptoms, albeit she added that there were grounds for thinking that the Prisoner was dealing with past traumas by a process of denial. 102 Some of these matters made me wonder whether the Prisoner had been putting on an act for the benefit of Drs Wong and Canaris and indeed during the course of the trial when the Prisoner had sat for almost all of its 12 or so days with head bowed looking at the floor and exhibited little, if any, emotion. The view that the Prisoner was not suffering from any psychiatric symptoms also provides ground for wondering about the accuracy of the opinion of the doctors that at the time of Mr Boyson's death, the Prisoner was suffering from an abnormality of mind. 103 Although it was tendered after counsel had made their submissions on the issue of diminished responsibility, Professor Hayes' report and her evidence are matters I have taken into account on that issue. However at the end of the day I reached the conclusion expressed above. The Prisoner's affect of which Drs Canaris and Wong spoke was noted sufficiently often in the past by authors of documents in the DOCS file that I do infer it was genuine and one must recognise that there have been changes in the Prisoner's circumstances over time. Professor Hayes observed that from what the Prisoner had said, his time with Youth off the Streets has been the most stable and happy environment that he has ever been in throughout his entire life and he is learning to trust people. Other evidence, some of which I refer to below, shows that he has participated in programs calculated to overcome a number of his problems and that there have been significant changes in him since he was taken in by that organisation. One must recognise that of the 2¾ years the Prisoner has been with YOTS prior to his interview with Professor Hayes, 2½ years occurred prior to his interviews with Drs Canaris and Wong although neither must one forget that, although he still faced the prospect of going to jail at the time of seeing Professor Hayes, he had by then been acquitted of murder. 104 Furthermore, in the period between seeing the doctors and Professor Hayes, the Prisoner had also been interviewed on 5 occasions for a total of some 9 hours by Ms Jones, who noted that the Prisoner had become noticeably more relaxed and talkative and made more eye contact as time progressed, and had been intensively counselled by a Dr Brentrow for periods totalling some 23½ hours over some 4 or 5 days. One hesitates to conclude that after a lifetime of experiences such as the Prisoner had had, counselling over but a few days could make much difference but in this case the evidence of Father Riley suggests it did. 105 Although the topic is of more significance later, it may be appropriate to divert and say something about YOTS and Father Riley. YOTS operates a number of residential premises ranging from highly structured environments to independent houses. These residential premises include farms such as those where the Prisoner resided pending trial. It has about 110 beds for residential placements. The farms incorporate or have access to a school run by the organisation and which is accredited and educates persons within the organisation's care up to the Higher School Certificate standard. 106 YOTS also operates on the streets of, and has crisis centres in, inner Sydney. It operates drug and alcohol programmes. In Father Riley's words, given in the course of an application for bail, but to which the parties agreed I could have regard :- Its "profile would be we would take kids who no one else will be involved with, who are basically on the streets, or kids who are in custody for welfare issues, or kids in custody who have no other options for them, so, in terms of maybe eligible for bail but there is no one there to take them out. So we are involved with the chronically homeless or hard core street kids." 107 At least in part it tries to model itself on a family, and its approach is "getting close to kids". Though it has a cut-off (entrance) age of 18, the organisation only moves people out when they are ready or breach some of the rules, e.g. fail a urinalysis. It remains involved with, at least some, persons who have left its programmes or who are in independent living. 108 Father Riley is the Director and Chief Executive Officer of YOTS. He is a qualified teacher, is a Bachelor of Theology and Bachelor of Arts majoring in sociology, and has Diplomas in Psychology, Abuse Counselling, Residential Care and Teaching. He said that he has not previously been involved in the supervision of persons subject to recognisances but it is clear that he has been involved with persons on bail. He said, and I accept, that it is his invariable rule to report persons released into his care who breach their bail conditions and I have no doubt that Father Riley would, as he said, report the Prisoner if the latter breached the terms of any recognisance to which he was subject. 109 Among the programmes employed by YOTS is one referred to as Positive Peer Culture, a programme designed to induce young people to address and help each other with issues that concern them and to identify strengths they have and can use in that regard. A leading proponent and perhaps developer of this program is Dr Brentrow who comes from the United States. He has been an adviser to YOTS for some 2 years and during the period the Prisoner was on bail awaiting sentence was in Australia giving in-service training to YOTS staff. Father Riley induced Dr Brentrow to consult with the Prisoner. 110 During an application for bail on 8 June 1999 following the Prisoner's conviction, Father Riley said that the Prisoner had significant problems in the Positive Peer Culture program and that, while there has been some improvement, he still had difficulty in articulating his emotions. It was subsequent to this that the counselling with Dr Brentrow occurred. According to Father Riley's evidence on 13 August, during the last consultation "we were dealing with a very different type of person that was portrayed in (the) court room" and that the Prisoner had changed dramatically. Father Riley did not suggest, and nor do I, that all of the Prisoner's emotional or behavioural or lifestyle problems were behind him. As did others, Father Riley said that the Prisoner still needed a supported and structured environment. However the matters to which I have referred are enough to persuade me that Dr Hayes' assessment of the Prisoner does not invalidate what Drs Wong and Canaris had said bearing on the topic of diminished responsibility at the time of Mr Boyson's death. It may be noted that Professor Hayes was of the view that the Prisoner had not been "putting it on" for Drs Canaris and Wong. 111 Other matters relevant to the sentence to be imposed include the following. The Prisoner has been assessed as of average intellectual ability although Mr Sims, one of his teachers, describes the Prisoner as above average. Since he has been at YOTS he has applied himself to study and achieved his school certificate. He is studying for his Higher School Certificate this year. His school reports consistently describe his behaviour as very good and his class activity as good or very good. He commenced an entry course at Wollongong University in 1998 although he withdrew due to the workload and his perception that there were too many drugs readily available there. The Prisoner has identified careers in which he is interested. 112 The Prisoner has participated in drug and alcohol counselling. Father Riley said that the Prisoner had not reacted angrily or violently while at YOTS although Mr Sims refers to one incident of what he described as legitimate anger. Father Riley said that the Prisoner had developed greatly over the 2½ years with YOTS and while he had particularly major issues to deal with emotionally, there was significant hope for rehabilitation and indeed the Prisoner had come a long way already in that respect. Father Riley said:- "We have had other kids with very serious charges in our programs who have not held together nearly as effectively as Tomi has and that, from my point of view, is a real credit; that he is able to deal with the incredible stress and pressure that he has had to deal with in such a mature way. I know it has been hard for him." 113 Father Riley gave some further evidence on this topic at T89 on 13 August 1999 which it is unnecessary to repeat but which I found impressive, as indeed I found him. 114 Professor Hayes opined:- "He continues to be, I think, a very traumatised young man and I think that he is probably denying, to some extent, his own distress and problems, but I'm not sure that they can be addressed at the moment until there has been a settling and trust-creating process, and I don't think, also, that those disturbances would necessarily result in violent behaviour in the future." 115 Professor Hayes also said that all the factors which would predict violence in the future are in favour of the likelihood that there will be no violent incidents in the future. 116 Another factor which argues against a custodial sentence is the evidence which has been given as to the undesirable features of detention centres. 117 Professor Hayes gave evidence that the environment of the Juvenile Justice Detention Centres of Kariong and Minda was violent in the sense that in-mates tended to prey on one another, that at Kariong (and I would infer at other detention centres also) there was a "tough environment pecking order, where the crime and what has been committed is often the topic of conversation." She said drugs were available in both institutions and the opportunity to engage in therapeutic programs is much more limited than in the environment where the Prisoner has been pending trial. 118 On the occasion when the Prisoner sought bail pending the sentencing hearing, I asked Father Riley whether he saw any likelihood of damage if between then and sentence the Prisoner was kept in a detention centre. Father Riley answered firmly in the affirmative. Inter alia he said:- "I do get kids out of these detention centres time and time again, fixing up what happens to them in those facilities is major and the ones that have been institutionalised - and I can think of two in the last week - for periods of even 18 months in a juvenile detention centre - the damage that has happened to them and the hardness - I wonder, with these two I have got last week, whether I still have hope with them. They are 17. They are so institutionalised I do not know if we can break through that. Tomi is not institutionalised at this point, I don't believe." THE PRINCIPLES 119 The approach and the considerations which a Court must take into account in a case such as this are well know. The appropriate starting point is the recognition that the offence has involved the felonious taking of a human life - R v Blacklidge (unreported, CCA, 12 December 1995) - a matter of the utmost seriousness. The subjective features of an offender must not be allowed undue weight - R v Geddes (1936) SR (NSW) 554 at 556. In that regard I should acknowledge that I am conscious that, in these Reasons, attention to those subjective circumstances has occupied far more space than the objective circumstances of the offence. That is largely a reflection of the fact that the circumstances of the offence are essentially simple while the subjective circumstances cover the full period of the Prisoner's life. It is not an indication of an inadequate recognition of what happened to Mr Boyson. 120 On the other hand, the circumstances of both offences of manslaughter and offenders convicted of that charge vary enormously, and this Court has recognised that not in all cases is a custodial sentence required. Examples of cases of manslaughter where custodial sentences have not been imposed include R v Thiel (unreported, Finlay J, 27 September 1990), R v Gardner (unreported, Wood J, 27 March 1992, R v Gilham (unreported, Abadee J, 7 April 1995), R v Platts (unreported, Newman J, 7 June 1996), and R v Kennedy (unreported, Greg James J, 30 June 1998). Nevertheless, it must be recognised that the circumstances of those cases might fairly be described as exceptional or extreme. 121 In my view, the same may be said of the circumstances of this case. In that regard, I do not find it necessary to rely on the factors of diminished responsibility and provocation, although I do regard both of those factors as arguing with significant weight for a sentence towards the lower end of the range. The provocation, as I have said, was very high and a case where the offender was suffering from an abnormality of mind is not one where the element of deterrence has the same weight as in other circumstances - R v Scognamiglio (1991) 56 A Crim R 81 at 85-6, R v Bus and AS (unreported, CCA, 3 November 1995). 122 Furthermore allowance must be made for the offender's youth. R v GDP (1991) 53 A Crim R 112 and the prospects of rehabilitation which, for reasons indicated below, are attendant upon a non-custodial sentence. The circumstances of the offence in this case are not ones where the considerations of youth may or should, be or be almost, disregarded - c.f. R v Gordon (1994) 71 A Crim R 459 at 469, R v MacIntyre (1988) 38 A Crim R 130 at 139. However, in light of the matters to which I am about to refer, I do not need to consider whether, in their absence, a custodial sentence would have been required. 123 What makes this case one which may fairly be described as exceptional or extreme is the Prisoner's upbringing. It may be summarised as follows. 124 Developmentally delayed in his first year of life due to the lack of care by his alcoholic mother he was removed from her. Exhibiting "gross behavioural, emotional, educational and cognitive problems" by the time he was nearly 6 - caused or contributed to by inadequacies in the persons with whom he was fostered - he was removed from them. After 2 years in Bernardos and in another foster care, both of which placements seem to have progressed well in the circumstances - he and his sister were again moved - back to his mother. Although by then she had apparently overcome her alcoholism, given that history and the "very difficult management problems" which the Prisoner and his sister were, not surprisingly his mother could not cope and in December 1990 he was once again removed. 125 Nearly 11, and diagnosed as unable to trust adults, viewing the world as a rather threatening place and lacking the personal resources to deal with emotional pressures, there cannot have been much, if any, time since he was born that he had the benefit of love, self esteem, or self-confidence. Institutionalised during 1991 he was rejected again by his mother at Christmas time of that year. His subsequent placement with Mr W may have been of a steadying nature, but a consideration of what happened after December 1991 leads to the conclusion that the die was cast. Certainly, the Prisoner's history reminds one of the maxim, attributed to the Jesuits, to the effect, "Give me a child till the age of seven, and I will give you the man". 126 Although the Prisoner's past does not entitle him to ignore or disobey the laws essential to the operation of a civilised society, his upbringing was so different from the norm that it seems to me it would be wrong simply to judge his actions by the standards one would apply to a person who had enjoyed a normal, loving and reasonably emotionally stable upbringing. In my view the circumstances of the case are such that, notwithstanding the Prisoner's offence was manslaughter, (and alcohol a possibly drugs were involved) a custodial sentence should not be imposed. 127 In reaching this conclusion I have not ignored the possibility that the Prisoner's past may render him more likely than others to again indulge in anti-social and criminal behaviour. However, on this topic, the Prisoner has the advantage of the good reports as to his behaviour while he has been with YOTS and the favourable opinion of Professor Hayes which I accept. Furthermore, the course I propose to adopt is calculated to provide the Prisoner with continued guidance and instruction for some time to come. It is also unlikely that the strain which the Prisoner must have experienced in awaiting for some 2½ years his trial for murder will not have had a salutary effect on him. 128 I have not found it necessary to take into account the conditions described as operating at the detention centres to which I have referred, beyond recognising that such centres could not provide the environment for rehabilitation which I am satisfied exists with Youth of the Streets. At the same time I cannot but record my dismay that, despite the clear advantage to the community of rehabilitation of young offenders, the Courts of this State are required to send such persons to institutions which the evidence in this case (and in other cases I have heard) shows, are likely to make such young offenders worse. That such institutions cannot be kept drug free or virtually so, is a damning indictment of those responsible for their administration. 129 Having, on 13 August 1999, arrived at the conclusion that I should not impose a custodial sentence, I sought further assistance from the Crown, the Department of Juvenile Justice and Father Riley as to the course which should be followed. While not resiling from his primary submission that a custodial sentence was required, the learned Crown Prosecutor did not contend that a properly structured recognisance under Section 558 of the Crimes Act was not the next most appropriate course. He did, however, submit that the conditions of any such recognisance should refer to and involve the Prisoner's supervision by the Department of Juvenile Justice rather than, as I had suggested, Father Riley. 130 In that regard he pointed out that the Department was constituted by Parliament for the very purpose and represented a permanent institution with officers dedicated to, and likely to be experienced in, the tasks. He pointed out that by contrast YOTS was but a voluntary organisation and Father Riley had not undertaken such a role before. 131 Although I do not judge the Department of Juvenile Justice or its present or future staff by the Department of Community Services or those officers within it who have had responsibility prior to this for the Prisoner, the performance by the Department of Community Services in looking after the Prisoner's interests is sufficient to greatly weaken, if not remove, any presumption that a Department of State is better than a voluntary organisation. Although it is not my primary function to sit in judgment upon the Department of Community Services, it is I think not inappropriate to record that that Department's performance so far as the Prisoner is concerned seems to me to have been appalling. Having taken control of the Prisoner, for 5 years after he was first made a ward the Department failed to ensure that he and his sister were being properly looked after and not emotionally abused. Then, to return the Prisoner and his sister to his natural mother, when she presumably still had the emotional or physiological inadequacies which had led her to becoming an alcoholic in the first place, at a time when the children were still regarded as "very difficult management problems who require intensive and continuous care which is far beyond that required for a ward in normal circumstances" is impossible to understand given the risks which yet a further rejection would involve. Despite some 16 assessments of the Prisoner by psychologists and psychiatrists between 1982 and 1996 and a file of paper some 13 cm thick, the Department never overcame the problems to which they had contributed. Although the circumstances have been different it is appropriate to observe that Father Riley and his organisation has achieved more in 2½ years than the Department did in 15. 132 Furthermore, although the Department of Juvenile Justice may be permanent, its employees are not. Amanda Jones, the officer who interviewed the Prisoner for the purposes of the sentencing proceedings had left the Department before those proceedings were concluded. She had been with the Department but 2½ years and her co-signatory, Ms Duncan, 5½ years. Both were young and although the likelihood is that some other person would supervise the Prisoner if the Department was the supervising body, these facts demonstrate that such a person may not have anywhere near the experience and expertise one may infer Father Riley has. And there is some evidence to suggest that the Department has, by no means, adequate resources. Although Ms Duncan said that there was a Juvenile Justice officer in Bowral who could travel quite regularly to monitor the Prisoner's progress, Father Riley's evidence, which I accept, was that when the Prisoner was required to be interviewed for the purposes of placing the Juvenile Justice report before me, the Department's resources were not such as enable its officer even to travel to the Prisoner. YOTS had to transport the Prisoner 4 times to the Department. Of some relevance also is that, according to Amanda Jones' report, the Prisoner did not respond well to supervision by the Department of Juvenile Justice in 1995 and, although the period of his absence is unknown to me, the Department did not know of his whereabouts. 133 In any event, I am satisfied that the supervision of the Prisoner by Father Riley or other officers of his organisation is likely to be at least as thorough, and for some years substantially more constant, than supervision by the Department. I am also satisfied that the rehabilitation available to the Prisoner at or through YOTS is at least the equal of that which the Department can provide. I do not regard participation in a specific Violent Offender's Program as required. Given what YOTS has achieved it, or more specifically Father Riley, should continue to supervise the Prisoner. 134 The Crown prosecutor also submitted that any recognisance should be for a period of 5 years. In light of the fact that the Prisoner has already been subject to significant restrictions on his liberty for over 2½ years now, I do not regard so long a period as required. I propose to limit the period of the recognisance to 4 years. The other provisions of the recognisance were not the subject of contention. As imposed on 15 September 1999, it was in the following terms:- "(K) for the offence of manslaughter, of which you have been convicted, I defer passing sentence and order your release upon your entering into a recognisance, without surety, in the amount of $500, for a period of four years, such recognisance to include the following conditions:- 1. that you be of good behaviour; 2. that you not partake of illegal drugs; 3. that you not partake of alcohol for a period of twelve months. 4. that you reside only at such places as may be approved of by Father Riley or other the Director for the time being of Youth Off the Streets Inc; 5. that you participate in such educational, vocational, drug and alcohol, and other programs as may be directed by Father Riley or other the Director for the time being of Youth Off the Streets Inc; 6. that you undertake such employment and only such employment as may be approved of by Father Riley or other the dire tor for the time being of Youth Off the Streets Inc; 7. that you obey all reasonable directions of Father Riley or other the Director for the time being of Youth Off the Streets Inc, including directions concerning the ingestion of alcohol at the expiration of the twelve months referred to in condition 3." 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