R v ROBINSON [2000] NSWSC 541

New South Wales Supreme Court

CITATION : R v ROBINSON [2000] NSWSC 541 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 70056/99 HEARING DATE(S) : 03/04/00, 04/04/00, 05/04/00, 10/04/00, 11/04/00, 12/04/00, 13/04/00, 14/04/00, 17/04/00, 18/04/00, 19/04/00, 20/04/00, 09/06/00 JUDGMENT DATE : 16 June 2000

PARTIES : REGINA v Harry ROBINSON JUDGMENT OF : Barr J at 1

COUNSEL : Crown: P Power Offender: J Spencer SOLICITORS : Crown: Director of Public Prosecutions (NSW) Offender: Ross Hill & Associates CATCHWORDS : Criminal Law - sentencing - murder. DECISION : See paragraph 25.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

GRAHAM BARR J

Friday, 16 June 2000

70056/99 - REGINA v Harry ROBINSON

SENTENCE 1 HIS HONOUR: The offender was found guilty by a jury of the murder on 17 September 1998 at Junee of John Thomas Kennett. The offender was an inmate of Junee Correctional Centre in September 1998 when the deceased began to occupy a cell in the same part of the gaol as the offender's cell. The deceased was serving a sentence following his conviction for sexual offences on schoolchildren within his charge, and that fact came to be suspected by the inmates of that part of the gaol, including the offender. Papers were obtained from the deceased's cell, confirming the suspicion, and a discussion took place about giving the deceased a hiding and getting rid of him from that part of the gaol. The offender said that he would thump the deceased. He and another inmate went to the deceased's cell and set about him, punching and kicking him. The offender was concentrating on the deceased's head and the other inmate on the lower part of the body. The offender was wearing joggers and delivered a large number of kicks to the head. The cause of death was blunt force head injury. There were a number of fractures of the bones, namely of the right side of the jaw bone and of the nose, as well as extensive bruising under the skin over the right side of the cheek and the jaw. There was a tear beneath the upper lip. Teeth were broken and there was bleeding on the inside of the skull over the surface of the brain. 2 The offender was carrying an injury to his knee and wore an elastic bandage to support it. After the attack he said that he was sorry that he had not been able to stomp harder on the deceased's head because of his knee injury. 3 The offender was born in Australia on 2 May 1972 of Lebanese parents. He is the third eldest of nine children and was raised in a family described by the reporting Probation and Parole officer as dysfunctional. He was the subject of physical and sexual abuse at the hands of his father and a male associate of his father. At an early age he became violent and began staying away from school and stealing things from shops. Between the ages of eleven and sixteen he spent a significant amount of time in Darlinghurst as a prostitute. He began drinking alcohol at age thirteen and using heroin and other illegal drugs at age sixteen. All these things alienated him from his family. 4 In September 1991 the offender was convicted of several robbery offences and sentenced to imprisonment incorporating a minimum term which expired in November 1994. He was released to parole but within two weeks was arrested on a charge of assault with intent to rob. That resulted in a sentence incorporating a minimum term of two years' imprisonment dating from December 1994. In December 1996 he again obtained parole but that parole was revoked in July 1997 following his arrest on charges of robbery whilst armed and robbery with aggravation. He was serving that sentence at the time of the events the subject of this sentence. 5 In January 1998 he was admitted to the Kevin Waller Unit at Long Bay gaol because it was feared that he might harm himself. He stayed there until July 1998 and during that time was reported a number of times for irresponsible behaviour. He had been at Junee Correctional Centre for about three months when he murdered the deceased. 6 During his current term of imprisonment the offender has misconducted himself many times, often for aggressive behaviour and drug offences. He is addicted to the use of alcohol and illegal and prescription drugs, and has been so since his teenage years. He has taken part in intensive treatment for these addictions, but only spasmodically in recent times. He has participated in a methadone programme, both in the community and whilst in custody. 7 He has attempted suicide and mutilated himself on a number of occasions and has been admitted for psychiatric care on five occasions. 8 He received intensive psychological counselling before being sentenced in 1997 and immediately afterwards. In 1998 a psychologist attached to the Kevin Waller Unit described the offender as deeply disturbed and Professor Finlay-Jones, psychiatrist, diagnosed him as one of the worst cases of borderline personality disorder he had encountered. 9 The offender has spent all but a few months of his adult life in prison. The violence and sexual assaults perpetrated on him as a child left him severely emotionally disturbed. This disturbance and his addiction to alcohol and to illegal and prescription drugs are responsible for his serious and repeated misbehaviour. 10 The offender is described as having had various "association difficulties" with other inmates which are likely to get in the way of a lower classification. He has told those reporting on him that he does not take a backward step when confronted. 11 Psychiatric reports were received from Dr Nielssen and Dr Clarke. Dr Nielssen diagnoses a severe personality disorder with anti-social and borderline traits. Dr Clarke diagnoses borderline personality disorder with transitory psychotic states. 12 Documents tendered contain a number of vague references to schizophrenia, but I do not accept that the offender has been or is suffering from schizophrenia. I do not accept the existence of transitory psychotic states. I accept that the offender experiences unstable moods with dysphoria and episodes of sudden anger, which he will find difficult to control. I accept that he is likely to continue to abuse alcohol and other drugs with the intention of modifying his unpleasant moods and thoughts with a consequent inability to control his violent urges. 13 This continuing state of mind, coupled with a hatred of homosexual men, has the potential to result in real danger for anyone with whom he comes into contact and whom he believes is homosexual. 14 However, there are some hopes that he may be able to modify his behaviour. 15 A psychologist at Goulburn Correctional Centre has recently reported a significant improvement in his emotional outlook, which might be attributable to the death of his mother in May 1999. The offender is reported as saying that his mother's illness and death have led him to reconsider his values and his direction in life. 16 There are signs also that the offender is aware of the danger to which I have referred and is prepared to take steps, if he can, to avoid that danger. He has been reported by Mr Kay, the Programs Manager at Goulburn Correctional Centre, as claiming that he did not want to be transferred to Junee for reasons including the fact that he had great difficulty dealing with inmates incarcerated for sexual assaults on children. There is also evidence to suggest that he is no longer suicidal. 17 He is reported as saying that he has begun practising the Muslim religion, the religion of his family, and in accordance with its teachings has forgiven his father. Unfortunately, since the offender chose not to give evidence it is difficult to place much weight on that assertion. 18 I conclude that although the offender may be able to understand why he loses his self control, he still largely lacks the ability to gain self control. It is not certain that he will gain that ability, but if he does so it will not be for many years. It is possible to say, I think, that he has some prospects of rehabilitation. 19 The offender claims to remember nothing of the attack on the deceased, but I do not accept that claim. He has told some reporters that his amnesia is feigned. It seems clear that when he realised that a convicted paedophile was living in his part of the correctional centre, he decided to attack and injure him in order to have the authorities move him to another part of the centre. So much appears obvious from the things he said and the way he went about the attack. He was wearing joggers and, although he delivered a vicious kicking, he used no weapon. What is also clear is that he utterly lost control of himself so that he ended up killing his victim, though he intended only to give him a severe beating. 20 It was submitted that the offender and his companion were incited to carry out their attack by another prisoner, who had sexual designs on the deceased and was embarrassed when the members of the gaol population realised that the deceased was a paedophile. It may be accepted that the inmate concerned approved of the deceased's being beaten, but I do not think that that approval or even any encouragement mitigated the offender's criminality. He was not beholden to the inmate concerned or, I think, influenced to do anything he was not eager to do. He volunteered to attack the deceased. 21 The offence does not fall into the worst category of murders, though it has very serious aspects, namely the offender's apparent inability to stop himself going and attacking a man who had given him no personal offence, his inability to control his actions once he entered upon the attack, the serious and sustained violence of the attack and the fact that the attack was carried out in the company of another on a defenceless man. 22 These matters make it a very serious offence of its kind and combine to produce the need for a strongly deterrent sentence. 23 The offender does not acknowledge his responsibility for the death, so there is no question of any leniency for remorse. 24 I propose to order this sentence to commence on 12 December 1999, the commencement date of the additional term of the sentence the offender was serving when he murdered the deceased. Apart from a period of time between December 1996 and July 1997 the offender has been in prison continuously since February 1991. The non-parole period of the sentence I impose will therefore be accumulated upon an effective period of imprisonment of more than eight years. That circumstance gives rise to the need for a non-parole period that is less than three-quarters of the term of the sentence I shall impose, and allow a period of eligibility for parole sufficient to enable the offender to have a suitably long and graduated period of introduction to a society outside prison that will be quite unknown to him. There is no other circumstance giving rise to that need. The non-parole period will be the minimum period that I can properly impose in view of the serious objective nature of the offence. 25 The offender is convicted of the murder on 17 September 1998 at Junee of John Thomas Kennett and is sentenced to imprisonment for a term of twenty-two years, commencing on 12 December 1999 and expiring on 11 December 2021. I set a non-parole period of fifteen years. The offender will become eligible to be released on parole on 11 December 2014. **********