R v POLANSKI [2000] NSWSC 854

New South Wales Supreme Court

CITATION : R v POLANSKI [2000] NSWSC 854 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 70017/98 HEARING DATE(S) : 07/08/00, 08/08/00, 09/08/00, 10/08/00, 11/08/00, 14/08/00, 15/08/00, 16/08/00, 17/08/00, 18/08/00, 21/08/00 JUDGMENT DATE : 28 August 2000

PARTIES : REGINA v Rafal POLANSKI JUDGMENT OF : Barr J at 1

COUNSEL : Crown: C Maxwell QC Offender: C Nash SOLICITORS : Crown: SE O'Connor Offender: Legal Aid Commission of New South Wales CATCHWORDS : Criminal Law - accused unfit to be tried - qualified finding of guilty of murder - nomination of limiting term DECISION : See paragraph 27.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

GRAHAM BARR J

Monday, 28 August 2000

70017/98 - REGINA v Rafal POLANSKI

NOMINATION OF LIMITING TERM 1 HIS HONOUR: The offender, Rafal Polanski, was charged that on 18 October 1997 at Ashfield he murdered Jozef Zimmer. He was found unfit to be tried and the Mental Health Review Tribunal determined that he would not within twelve months become fit to be tried. Accordingly the Attorney General directed that there be a special hearing into the matter. At the special hearing the jury returned a verdict that on the limited evidence available the offender committed murder. If the hearing had been a normal trial resulting in a verdict of guilty of murder I would have imposed a sentence of imprisonment. I am therefore required to nominate a limiting term which is my best estimate of the sentence I would have considered appropriate. 2 The offender is Polish by birth. He is now twenty-five years old and was twenty-two years old when he killed the deceased, Jozef Zimmer. He has been addicted to alcohol for a number of years now. He is a single man. Polish is his first language and he is inclined to seek out the company of Polish speaking people. 3 In October 1997 he was living in Cabramatta and on the night of the deceased's death he found himself at Ashfield. He had far too much to drink during the day and the evening and eventually found himself at the Polish Club in that suburb. His behaviour drew him to the attention of the management of the club. He was not a member of the club and was required to sign the register as a visitor. When he was asked to do he refused, and I think that that was because of the effect of alcohol upon him. He was eventually required to leave the premises. He was also ejected from a nearby restaurant. His response was to go to a discotheque in another part of the club, and eventually he was thrown out of that part of the premises as well. By that time it was so late that he had missed the last train to Cabramatta and he had spent most of his money on alcohol and could not afford a taxi. He began to think about where he might spend the night. 4 The deceased was employed as a barman at the club and noticed the offender during the evening. The deceased was homosexual and had a room at the next-door premises, which was known as the Polish House. He was in the habit of inviting young men back to his room and there having sexual relations with them. He invited the offender back to his room and offered him a bed for the night, intending, I think, to propose sexual relations with him. The offender accepted but was not homosexual and was not sexually attracted towards the deceased. He accepted the offer of a bed at face value. 5 It becomes necessary now to say something about the offender's history. He lived in Poland until he was nineteen years old, and then came to Australia, where he has remained. His early years were unhappy because of the cruelty of his father, who married his mother only because he had raped her and made her pregnant. The offender was the resulting child and was always known among his peers as a bastard. At that time and place to be a bastard was to be the subject of contempt, and the offender's peers taunted him. He completed elementary school, having learned to read and write in Polish, and commenced but failed to complete a carpentry course. He began to do casual labouring jobs such as fruit picking. He came to Australia with his parents but his father remained and his mother returned to Poland. He has no time for his father and their relations are poor. He has much more regard for his mother. 6 When he was eighteen he presented himself to a psychiatric hospital in Poland. He knew that his problems were related to his overindulgence in alcohol but might have suspected that something else was wrong as well. As it was, no psychosis was diagnosed. For reasons which I shall explain, I think that he was then in the stage of developing a chronic psychotic illness. 7 In Australia he continued to do unskilled jobs, spending some time fruit picking and then a substantial period house painting. He had a number of jobs for a number of people in that occupation. That is what he was doing at the time of these events. His workmates did not see him as a normal person and he did not act and mix normally. Some of them noticed him doing or saying things which seemed strange to them. 8 He had a settled conviction from an early age that his sexual parts were small. He had had no sexual relations with women and on one occasion asked a workmate how one went about sexual intercourse with a woman. He was later diagnosed as being psycho-sexually repressed. 9 When they arrived in the deceased's room the deceased invited the offender to sit on the bed, and he did so. The deceased put on a pornographic video which featured two men and a woman. The deceased sat next to the offender and started kissing and touching him. He said that he had lost money on the horses and wanted to relieve himself for fifty dollars. He proposed that for that sum of money he might suck the offender's penis. 10 The offender did not know what to do. He found the unexpected advance revolting. He left the room and went to the bathroom, hoping that the deceased might stop behaving in that manner. He returned to the room but again the deceased sat next to him and began to resume his sexual advances. The offender told him to wait and left the room a second time. The room was on the first floor of the house, not far from the staircase by which one could leave the premises. The offender went to the bathroom a second time, the while intending to leave the premises. Then he saw a fire extinguisher mounted on the wall and got the idea of teaching the deceased a lesson or playing a trick on him. He believed that the fire extinguisher would squirt foam and intended to direct it at the deceased. He took it back to the deceased's room. The deceased was bending down towards the wardrobe and the offender pointed the extinguisher at him and turned it on. To his surprise water, not foam, came out and wet the deceased. He swore at the offender and asked what was going on. At these unexpected events the offender became afraid. He did not know what to do. He simply wanted the deceased to leave him alone and let him sleep. He became petrified. He raised the fire extinguisher and hit the deceased on the head a number of times, causing very serious bony damage and injury to the brain. The pattern of blood that splashed onto the wall or objects at those blows shows that the deceased's head was at or close to floor level when the blows were delivered. The offender took a long-bladed knife and stabbed the deceased in the back with it, causing a wound several centimetres deep. However, I am satisfied that the deceased was already dead by the time that blow was delivered. The offender told the police that the delivery of the knife wound was accidental, the knife having glanced off the wardrobe, but I do not believe that account. 11 The very serious nature of the attack with the fire extinguisher, with repeated blows to the head, followed by the blow with the knife which might well have killed if the deceased had not already been dead satisfies me that the offender intended to kill the deceased. 12 Some indication of the anger of the offender is given by the fact that after he killed the deceased he set about throwing objects all over the room, emptying drawers, tearing posters off the walls, smashing light fittings, smashing video cassettes, so that the bedroom was scarcely recognisable as such. In addition, the offender took a bag that he found there and filled it with things, notably the video cassette recorder which had been playing the pornographic video, a compact disc player, coin collections of some value and other items of value. Having done so he left the premises, got a taxi and went home. He borrowed from a flatmate money to pay the taxi driver and concealed the bag of booty under his house. That is where the bag and its contents still were when the police spoke to him three weeks later. I think that he acted as he did in order to punish the deceased not to obtain for himself the use of his possessions. 13 The issues at the special hearing were whether the offender acted in self-defence, whether he intended at least to do really serious injury, whether he acted under provocation and whether his mental responsibility for his act was mitigated by his abnormality of mind. The only substantial issue, however, was the last-mentioned one of diminished responsibility. 14 The Crown was able to disprove provocation because the deceased's conduct could not have induced an ordinary person in his position so to have lost control as to have formed the relevant intent. There is no doubt in my mind, however, that the grossly offensive advances of the deceased constituted a serious provocation of the offender, affected as he was by his underlying psychotic illness, by his psycho-sexual repression and by the alcohol he had had to drink. 15 There was a lively issue at the hearing about the precise state of the offender's mental illness. Three psychiatrists gave evidence, Dr Strum and Dr Thompson for the Crown and Dr Canaris for the defence. All agreed that the offender was suffering at the time from an illness which constituted an abnormality of mind. 16 Dr Canaris was always of the view that the offender was suffering from psychosis, probably low-grade schizophrenia. Although he lacked the more florid symptoms of that condition such as delusions, hallucinations and ideas of reference, he suffered from thought disorder and a number of other symptoms. 17 Dr Thompson knew the offender better than any other psychiatrist, having seen him a number of times in prison and having treated him. She initially doubted whether he was psychotic but eventually, having seen the opinion of Dr Canaris, came to the view that he was psychotic and began treating him with anti-psychotic drugs. She expressed the view, however, that his psychosis would not have produced in him a reaction so strong as one involving an intent to kill unless he had also been affected by alcohol. 18 Dr Strum took the view that the offender was not psychotic but was suffering from a personality disorder. He agreed with Dr Thompson that but for the effects upon him of the alcohol he had consumed the offender would not have reacted as he did. 19 I think that the offender was suffering from a low-grade psychosis and in that respect I accept the evidence of Drs Canaris and Thompson. However, I do not think that the abnormality of mind from which he was suffering at the time would have produced such a gross reaction unless he had been affected by alcohol. That is consistent with the jury's failure to be satisfied that the offender had established the defence of diminished responsibility. 20 I think that I should nominate a limiting term upon the basis that although the offender's intention was to kill, he did not go to the deceased's room with that intention but only to obtain accommodation for the night. His intent to kill arose suddenly in the face of the gross provocative conduct of the deceased. The offence would not have happened if the offender had not been badly affected by alcohol. I do not regard alcohol in those circumstances as mitigating his criminality. 21 I think that the fact that the offender was suffering from low-grade schizophrenia, however, predisposing him to the unexpected effects of alcohol in the face of provocation, makes him a less suitable subject than most for a heavily deterrent sentence. 22 The question of dangerousness arises. It might be thought that if the mental condition of the offender continues as it is and if he continues to resort to large amounts of alcohol, then a repeat of the provocation might produce a repeat of the result. That is certainly possible, though I think unlikely in view of the treatment and assistance the offender is likely to receive. I propose to order that he be kept in a hospital and I expect that he will continue to be treated as he has during his period of incarceration awaiting the special hearing, by a psychiatrist using appropriate drugs. 23 Because of the restricted conditions in which he has been kept the offender has been denied the ordinary range of counselling, drug and alcohol courses and the like, but there seems to be no reason why his addiction to alcohol may not also now be treated and I see no reason why he cannot receive whatever assistance is available to help him overcome it. 24 In the result, I think it probable that the combination of circumstances which led to his loss of control are unlikely to arise again, and I do not think that he can properly be characterised as dangerous so as to deny him the benefits in the nomination of a limiting term to which he would otherwise be entitled. 25 The offender has progressed well under treatment and is well regarded by those who have had the care of him. He has been given and has accepted responsibility and has worked well. Every indication is that that state of affairs will continue. 26 The offender was arrested on 14 November 1997 and has been held in custody on this matter alone ever since. It is therefore appropriate to commence the limiting term that I shall impose from that day. 27 Rafal Polanski, I nominate a limiting term of thirteen years, commencing on 14 November 1997 and expiring on 13 November 2010. I refer you to the Mental Health Review Tribunal and I direct that you be detained in a hospital. **********