REGINA v OLIG [2000] NSWSC 1246

New South Wales Supreme Court

CITATION : REGINA v OLIG [2000] NSWSC 1246 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 70016/00 09/11/00, 10/11/00, 13/11/00, 14/11/00, HEARING DATE(S) : 15/11/00, 16/11/00, 17/11/00, 20/11/00, 21/11/00, 23/11/00, 27/11/00, 28/11/00 JUDGMENT DATE : 21 December 2000

Regina

PARTIES : v

Shane Eugen Olig JUDGMENT OF : Adams J at 1

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

SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADAMS J

THURSDAY 21 DECEMBER 2000

70016/00 REGINA v SHANE EUGEN OLIG

JUDGMENT ON SENTENCE 1 On 28 November 2000, Shane Eugen Olig, having been charged with the murder on 24 July 1999 of Annette Openshaw, was acquitted of that charge but convicted of manslaughter. 2 Ms Openshaw died in a fire lit in her home by the offender at about 6.30 am on 24 July 1999. They were alone at the time. Shortly after the fire the offender made a number of statements to police and doctors admitting that he had lit the fire and giving several accounts of the surrounding circumstances. In evidence in his trial the offender repudiated those admissions and asserted that the fire had, in fact, been lit by the deceased. The jury rejected this evidence as untrue. The offender had constructed an explanation for the relevant events which was in some senses rather cunning but was so unreal as virtually to demonstrate its falsity. Even when, at an earlier stage as I have mentioned, the offender accepted responsibility for the fire, his conversations with police largely comprised interminable criticisms of Ms Openshaw in an attempt, as I see it, to justify his behaviour in lighting the fire although I have no doubt that he was genuinely grief-stricken when he learned of Ms Openshaw's death. However, this was, even then, tinged with self-justification. 3 I am unable to conclude, I regret to say, that the offender has evinced any significant sign of genuine remorse for his own actions as distinct from his sorrow that Ms Openshaw died. The offender's dishonest evidence in the trial, to my mind, decisively establishes his lack of contrition. He did not give evidence in the sentence proceedings. 4 The offender and the deceased were, for some fifteen years or so, in what appears to have been a close and mutually supportive relationship before they separated in late February 1999. There were, as there nearly always are, a number of reasons for this separation, some of which had, no doubt, been present in one way or another for some time and others being more immediate. These matters are material only because they provide a context for what occurred on the day of the fire. Since they in no way excuse or mitigate the offender's offence, I do not propose to refer to them in any detail. 5 Before going further, I should make it clear that the offender has been acquitted of murder. It follows that he is to be sentenced upon the basis that, in lighting the fire, he did not intend to kill Ms Openshaw or cause her serious bodily injury nor did he advert to the likelihood that she might die in the fire. I also accept that the offender was surprised by the speed with which the fire took hold and spread, that he may have attempted briefly and ineffectually to put it out and that, after he had fled by jumping through a bedroom window, his genuine attempts to rescue Ms Openshaw were frustrated by the great heat and large amounts of smoke which developed within a very short time. 6 In attempting to rescue Ms Openshaw, the offender broke a window with his hand. A large piece of glass cut into his wrist and caused copious bleeding although, it appears, that no significant blood vessel was damaged. The offender said that he fled the scene in a panic to go to hospital for treatment of this injury. He had also suffered superficial, though painful, burns. Although the offender's injuries provided a reason for his departure, I have no doubt that the more important cause was his knowledge that he had started the fire with almost certainly fatal consequences for Ms Openshaw. The offender said in evidence that he thought that she might have managed to escape by following him out through the bedroom window. It is obvious from his behaviour at the time that this was not true and that he thought that she was still in the house when he left. Shortly after the offender escaped from the house, he shouted, "Annette, you bitch". He said in evidence that this was an angry response to her having put him in danger by lighting the fire. I consider that it was meant in the same sense that his denigration at the hospital of Ms Openshaw was meant, namely that he blamed her for what he had done. 7 The offender had initially been assured by a number of persons that Ms Openshaw had survived the fire and I accept that the offender may have believed this to be true, in part, because I have no doubt that he strongly, indeed, desperately wanted it to be true. His grief on being informed by police of Ms Openshaw's death was genuine, although its expression (if not the emotion) was relatively shortlived. Typical of the offender's self-absorption is the following, said almost immediately after he was told of her death - "You don't know how much I loved that woman. All she did was play games with my bloody head." 8 The only basis for the jury's verdict was that they were satisfied that the offender intentionally lit the fire which caused Ms Openshaw's death and that this was objectively both unlawful and dangerous. It was, of course, unnecessary for the jury to make any decision about the offender's actual motives or understanding, once they had determined that he had deliberately lit the fire. However, these subjective factors are most significant in determining an appropriate sentence. 9 The offender spoke to Constable Birch by telephone within minutes of his departure from the scene. He told the constable, "I put fuel down the hallway and lit it". Shortly after he was informed of Ms Openshaw's death and whilst he was obviously very upset, the offender said, in response to Detective Senior Constable Jones telling him that the police needed to speak to him about what happened, "She wasn't supposed to die, nobody was supposed to die", adding, a little later - "I went in there with the petrol and I was playing with it and I said, 'Look Annette, I will burn this whole house down' and she said, 'No you wouldn't do it'. And I lit up a cigarette and it caught on fire all down and it just went...She bolted into the bathroom and before I could get to the front door the smoke had just gone straight up with the house and everything." 10 (For reasons which do not matter, I am sceptical that the deceased went into the bathroom before making her way into the kitchen, where her body was found.) Three days after his arrest, the offender gave the following account to Dr Buskell, a staff psychiatrist at the Nepean Hospital, in the following terms - "He told me that he had gone to his de facto's house, that he kicked the door in, that he had taken a can of petrol which had been in the car for some time, that he threw the petrol on the floor and when she taunted him he threw a cigarette onto it. He said he had gone there to try to scare her into giving back his car ownership book. He said that when he was driven from the house by fire he went back in to try and rescue her." 11 The doctor noted that the offender, at the time she saw him, was agitated, very distressed, angry and remorseful. 12 In his evidence, the offender denied that he had kicked in the door to the house at any time before the fire started and said that he had done so when he was attempting to re-enter to rescue the deceased after his escape. Certainly, he was seen at the front door by a neighbour at that time. However, I consider that the offender's evidence about this was a lie and have concluded beyond reasonable doubt that, as he told Dr Buskell, the he kicked the door in to gain entry into the premises in order, at least, to threaten the deceased that he would burn the house down. I am fortified in this view by the offender's acceptance in his evidence, in substance, that Dr Buskell's account of her conversation with him was correct. Nor was she cross-examined to suggest that she may have been mistaken. For obvious reasons, the early account given to Dr Buskell is more likely to be true than later accounts, especially when these are tainted by the offender's dishonest attempts to blame the deceased for lighting the fire. 13 It is necessary to state some background that provides part of the context for the accused's bringing petrol to the deceased's house on the morning of the fire. The house in which the deceased and the offender resided from very shortly after their relationship commenced was owned by the Housing Commission and rented by the deceased, the offender believing that he also was a tenant as distinct from a mere joint occupier. In certain circumstances, houses such as this can be purchased by the tenants in which event, of course, payments must be made which are significantly greater than the rent. I accept that the offender and the deceased had agreed to undertake the purchase of the house and that, for this purpose, the offender had for some years paid to Ms Openshaw a substantial share of his earnings as a driver to be paid by her to the Housing Commission. It seems clear that this money was not used for the agreed purpose, although whether (as the offender alleged) it was gambled away by Ms Openshaw is uncertain. However, this does not matter very much. 14 I accept that the offender was shocked when he found out in about February and later confirmed when he visited the Housing Commission after the separation that, contrary to his understanding, Ms Openshaw was the sole tenant and nothing had been paid to the Housing Commission for the purchase of the house. I accept, also, that he felt betrayed by what Ms Openshaw had done. The offender has severe difficulties with literacy and it appears that Ms Openshaw took advantage of this. 15 There is no doubt that the deception preyed on the offender's mind and added to the anger and frustration which he felt following the discovery shortly before they separated of Ms Openshaw's relationship with another man. The offender stated with some feeling on several occasions to his friends that Ms Openshaw had got everything and he was left with nothing and that, if she got the house, he would burn it down. Together with the money that he had paid to the deceased over the years, believing that he was purchasing the house, his care and maintenance of it and building a pergola in the back yard intensified his feelings of proprietorship and, hence, anger and hostility at his exclusion from it in favour of Ms Openshaw. When Ms Openshaw's new boyfriend moved into the house with her, this caused significant additional hostility. 16 The offender was also obsessed by the breakdown of his relationship with Ms Openshaw, at times clearly wishing to be reconciled with her but at other times feeling very hostile towards her. 17 Three days before the fire the offender attempted to commit suicide, in what I believe was a somewhat half-hearted and clearly manipulative way. The offender gave evidence that the deceased had encouraged him to kill himself and, indeed, had given him sleeping tablets to assist him to do so. In light of the offender's own account to Dr Madden, who treated him on his admission to hospital on this occasion and the way in which the offender gave evidence about this matter, I reject this allegation as untruthful. However that may be, it is clear that the offender blamed the deceased for his situation, saying to a close friend who visited him in hospital that, if she walked through the door at that time, he would kill her.