New South Wales Supreme Court CITATION : Regina v Rees [2000] NSWSC 862 FILE NUMBER(S) : SC 70106/1997 HEARING DATE(S) : 31/05/00, 01/06/00, 02/06/00, 05/06/00, 06/06/00, 07/06/00, 08/06/00,09/06/00, 13/06/00,14/06/00, 15/06/00, 16/06/00, 19/06/00, 18/08/00 JUDGMENT DATE : 1 September 2000 PARTIES : Regina Jason Lee Rees JUDGMENT OF : Bell J at 1 COUNSEL : Ms L Wells - Crown Mr J Spencer - Accused SOLICITORS : SE O'Connor - Crown Jeffreys & Associates Sentencing Act 1989 LEGISLATION CITED : Evidence Act 1995 Crimes (Sentencing Procedure( Act 1999 CASES CITED : R v Previteria (1997) 94 A Crim R 76 at 85 Regina v MacDonald (unreported) NSWCCA, 12.12.95 DECISION : Sentence term of 4 years and 3 months imprisonment taken to have commenced on 18 November 1997. Non-parole period of 3 years and 3 months. Earliest date eligible for release 17 February 2001. IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION BELL J Friday, 1 September, 2000 70106/97 - REGINA v Jason Lee REES REASONS FOR SENTENCE 1 HER HONOUR: On 31 May 2000 the prisoner, Jason Lee Rees, was arraigned before me on an indictment charging him with the murder of David Palin on or about 18 November 1997 at Mangerton. To this count he entered a plea of not guilty. A jury was duly empanelled. On 19 June 2000 the jury returned a verdict of not guilty of murder, but guilty of manslaughter. 2 The proceedings before me were a retrial. On 17 June 1999 the prisoner stood for trial upon an indictment in the same terms before Carruthers AJ and a jury. On 15 July 1999 his Honour discharged the jury without verdict, they being unable to agree. 3 It was the Crown case that the prisoner, together with a co-accused, Mark Chipperfield, had been party to a joint criminal enterprise to rob Mr Palin of a quantity of drugs while the pair of them were armed with a wooden table leg. The evidence disclosed that Mr Palin had been savagely assaulted at his unit in Howarth Place, Mangerton on the morning of 18 November 1997. He died of head injuries in consequence of this assault the following day at the Wollongong Hospital. 4 The Crown's case at trial was one of "common purpose murder". It was conducted on the basis that the Crown was not able to establish which of the two men inflicted the fatal injuries upon the deceased. The jury were directed that the Crown would prove the prisoner's guilt of murder if it established beyond reasonable doubt that (i) he was a party to a common purpose with Mark Chipperfield to rob the deceased while they were armed with a wooden table leg, (ii) that he was present when the injuries were inflicted upon the deceased (iii) and either that he struck the deceased intending to kill him or to do him grievous bodily harm or that he realised it was possible that in the course of carrying out the robbery Chipperfield might intentionally inflict grievous bodily harm on David Palin. 5 Manslaughter was left upon two bases. Firstly, in the event that the Crown failed to satisfy the jury that the prisoner either himself inflicted the injuries with the requisite intent or that he contemplated that Chipperfield might do so with that intent, but proved that he contemplated that in carrying out their common purpose harm (albeit falling short of grievous bodily harm) might be occasioned to the deceased he would be guilty of manslaughter. The second basis upon which manslaughter was left was in the event that the jury were not satisfied that whoever struck the blows thereby intended to occasion grievous bodily harm if not to kill. 6 It is appropriate to briefly outline the background of this case and in so doing to refer to the related proceedings involving Mark Chipperfield. 7 The prisoner and Mark Ronald Chipperfield became suspects at an early stage in the course of the police investigation into the assault upon David Palin. The prisoner was arrrested on the evening of 18 November 1997. He was interviewed and gave an account in the course of that interview in which he denied being at the Howarth Place premises that day. He gave an alibi which he later conceded to have been false. Mark Chipperfield was arrested on 19 November 1997 he, too, participated in an interview with police. In the course of that interview, he admitted to being present at the premises in Howarth Street Mangerton on the morning of the assault. It was his account that the prisoner, Jason Rees, was the instigator of the robbery and that it was Rees who had struck Palin with the table leg. 8 Both men were charged with the murder of David Palin. They were due to appear for trial before Carruthers AJ on 15 June 1999. On that day the Crown Prosecutor informed his Honour that Mark Chipperfield wished to plead guilty to the second and alternative count in the indictment and that the Crown was willing to accept that plea in full discharge of the indictment. Mr Chipperfield was duly arraigned and entered a plea of guilty to a count which charged him that on or about 18 November 1997 at Mangerton being in company with Jason Lee Rees he did rob David Palin of one cash tin and one Nintendo machine, the property of David Palin. That plea was accepted in full discharge of the indictment which as to the first count, had charged Mark Chipperfield with the murder of David Palin. His Honour proceeded to sentence Mr Chipperfield. The agreed facts upon which Mr Chipperfield's plea was entered are as set out in his Honour's Reasons for Sentence of 16 June 1999. 9 Mark Chipperfield was sentenced to a minimum term of 3 years and 3 months imprisonment to commence on 19 November 1997 and to expire on 18 February 2001. An additional term of 1 year and 9 months was imposed to commence on 19 February 2001 and to expire on 18 November 2002. As is evident, his Honour found special circumstances for the purpose of S 5(2) of the Sentencing Act 1989 justified a departure from the usual proportion between the minimum and additional terms. 10 Mark Chipperfield was called in the Crown case in the subject proceedings. He claimed to have no memory for the events of 18 November 1997. I granted leave to the Crown Prosecutor to cross-examine pursuant to s 38 of the Evidence Act 1995. Ultimately the Crown proved the contents of Mr Chipperfield's electronically recorded interview with police. 11 Mr Chipperfield presented as a markedly unimpressive witness and the contents of his self serving record of interview did little to advance the Crown case. 12 I approach the matter of sentence upon the basis that the Crown failed to establish beyond reasonable doubt that the prisoner inflicted any of the fatal blows upon the deceased. In the light of the medical evidence which was unchallenged, I consider it inevitable to conclude that whoever inflicted a number of those blows on the deceased did so intending at the least to thereby inflict grievous bodily harm upon him. This leads me to find (consistent with the jury's verdict) that the prisoner (i) was present at the time of the assault upon the deceased, (ii) that he was a party to a joint criminal enterprise with Mark Chipperfield (iii) and that he realised that in carrying out that criminal enterprise harm might be occasioned to the deceased (albeit harm falling short of the infliction of grievous bodily harm). As I have noted, the joint criminal enterprise identified by the Crown was to rob David Palin while the pair were armed with a wooden table leg. However, I bear in mind that the prisoner has not been convicted of armed robbery or robbery in company. I am dealing with him for the offence of manslaughter upon the basis I have outlined. 13 I turn now to the evidence led at the sentence hearing. Firstly, I note the contents of a victim impact statement prepared by the deceased's mother which I received pursuant to s 28(3) of the Crimes (Sentencing Procedure) Act 1999. The deceased was the father of three children, Matthew, Scott and Natasha. He had sisters and a brother and family living overseas in England. It is clear that he was well loved. Mrs Palin describes the terrible impact of his death on the whole family. The Court extends its sympathy to Mrs Palin, to the children and the other family members in their loss. I approach the contents of the victim impact statement in conformity with the observations of Hunt CJ at CL in R v Previteria (1997) 94 A Crim R 76 at 85. 14 The prisoner was aged twenty three years at the date of the offence. He has a lengthy criminal record dating back to when he was a juvenile. He has convictions as an adult for assault, break enter and steal, dishonestly obtain benefit by deception, stealing and receiving. He served his first term of imprisonment in respect of an offence committed when he was eighteen. In October 1994 he was arrested and charged with armed robbery. In relation to this matter he was sentenced in the Wollongong District Court in May 1995 to a minimum term of 18 months imprisonment with an additional term of 18 months. Subsequently in February 1997 he was sentenced to a fixed term of 2 months imprisonment following his conviction for assaulting police. A further sentence of 1 month by way of fixed term was imposed in May of that year, following his conviction for an offence of stealing. 15 On the date of his arrest with respect to the subject offence, the prisoner was charged with a number of other offences including (i) take and drive conveyance without the consent of the owner, (ii) possess prohibited drug (iii) possess prohibited plant (iv) receiving and (v) goods in custody. In respect of these matters he appeared before the Wollongong Local Court on 4 May 1998 and was sentenced to a fixed term of 3 months imprisonment. 16 Three reports were tendered on the prisoner's behalf at the sentence hearing; a report of Dr Bruce Westmore, forensic psychiatrist, dated 4 August 2000, a report of Dr Thomas Clarke, forensic psychiatrist, dated 14 August 2000 and a report of Katherine Barrier, consultant psychologist, dated 8 August 2000. Each report details something of the prisoner's background. 17 The prisoner was born in the Wollongong area and raised in a family consisting of both parents and an older sister. He described a homelife characterised by domestic violence. There is more than a suggestion that he suffered from attention deficit disorder as a child. Around fourteen or fifteen he appears to have left home. From the age of fifteen he reports heroin abuse. It is to be noted that his juvenile record begins when he was aged sixteen. He has a long standing problem of addiction to heroin. He commenced a methadone program just prior to his arrest. He continued on the program for approximately two and a half years, reaching a maintenance dose of 120 milligrams. He gradually reduced that dose and in the ten weeks prior to the sentence hearing he reported that he had been methadone free. 18 Dr Westmore sets out details of the prisoner's employment history. He undertook an apprenticeship as a pastry cook for a period of about two years. It appears that he also worked in a timber yard, as a brickie's labourer, as a concreter and in a scrap metal yard. The prisoner told Dr Westmore that he had last worked in 1996. He had not worked since that time because of his drug addiction. 19 Ms Barrier conducted both the Kaufman Brief Intelligence test and the Millon Clinical Multiaxial Inventory Three test. The former produced a composite IQ score of 76, plus or minus 8. This placed the prisoner's overall intellectual functioning in the borderline range of intellectual functioning. Dr Westmore does not comment on any suggested intellectual deficit. Dr Clarke noted the IQ test results, observing: "I note the psychologist thought that this was in the borderline range but I would have thought his functioning is more in the below average rather than borderline." 20 It appears that both Dr Westmore and Dr Clarke conducted quite detailed interviews with the prisoner. I approach the matter upon the basis that despite the composite IQ score, the prisoner's functioning is as Dr Clarke describes it. This is not a case in which I consider it is appropriate to place a lesser degree of weight on considerations of deterrence in the light of the prisoner's level of intellectual functioning. It was not submitted that I would do so. 21 The results of testing obtained by the administration of the Millon Clinical Multiaxial Inventory Three are as set out on page 6 of Ms Barrier's report. They do not encourage a great deal of optimism insofar as an assessment of the prisoner's prospects for rehabilitation are concerned. Ms Barrier notes that: "Scores on severe personality pathology indicates that his mal-adaptive traits are present to the degree that he may attract a diagnosis of personality disorder." 22 Ms Barrier does note that having been in prison on remand for a period of three years, the prisoner has made some positive changes. She refers to his participation in the methadone maintenance program and, more recently, to his voluntary withdrawal from it such that he is now drug free. She also notes the findings of research which indicate that people with the prisoner's disposition "wear out" as they approach the fourth decade of life and tend to come to the attention of the law less often. The prisoner had told Ms Barrier that he was tired of serving significant periods in prison and he appeared to have made the connection between his own drug use and anti-social behaviour. 23 Dr Clarke describes the prisoner as suffering from substance abuse disorder. He considers that there are more long term issues as well and is inclined to a retrospective diagnosis of attention deficit disorder. Dr Clarke commented that the prisoner has inconsistent features for an anti-social personality disorder of the classic variety. In this regard I note that Dr Clarke appears to have been of the view that the prisoner had no prior convictions for violent behaviour. To the extent that Dr Clarke's opinion is based upon a belief that the prisoner has no prior convictions for violence I do not accept it. 24 Dr Westmore considers that the prisoner suffers substance abuse/dependency difficulties. He notes that it is likely that he has dysfunctional components to his personality. In Dr Westmore's view it is unclear whether these observed behaviours and personality characteristics arise from a personality disorder per se, or whether they are reflective of the substance abuse problems. He concludes that it is possible that a combination of these factors are involved in the prisoner's behavioural disturbances. Dr Westmore observes: "I do note that he appears to have a reasonably good work history and an ability to enter into and maintain longer term relationships. I also note that he appears to have a positive relationship with his family of origin. These features are not altogether consistent with an anti-social personality disorder although they do not enable that condition to be excluded either at this time." 25 Dr Westmore concludes that from a psychiatric perspective the prisoner would benefit from an extended period of psychiatric support and supervision. It is Dr Westmore's view that the prisoner: "is still a young man who has I think a reasonably good prospect of being rehabilitated but much of this will depend on his ability to enter into and maintain sobriety from elicit drugs". 26 In the light of the overall picture obtained by a reading of the three reports, I entertain some reservations about approaching the matter upon the basis that the prisoner has reasonably good prospects of rehabilitation. However, I accept that over the three years he has served in custody he has been seen to make positive efforts, particularly with respect to dealing with his problems of drug abuse. I deal with him on the basis that he has some prospects of rehabilitation. 27 I take into account in the prisoner's favour that he has been in custody for a lengthy period awaiting the final disposition of this matter with the attendant anxiety of not knowing his fate. 28 The physical beating to which the deceased was subject was a sustained and brutal one. However, I am not dealing with the prisoner upon the basis that he either inflicted those injuries upon the deceased or that he contemplated that an assault of that severity might be carried out by his co-offender. The objective criminality of the offence is to be assessed in that light. Equally, I note the observations of Gleeson CJ in Regina v MacDonald (unreported) NSWCCA, 12 December, 1995: "In a case such as the present, it is important to bear in mind the denunciatory role of sentencing. Manslaughter involves the felonious taking of human life. This may involve a wide variety of circumstances, calling for a wide variety of penal consequences. Even so, unlawful homicide, whatever form it takes, has always been recognised by the law as a most serious crime. The protection of human life and personal safety is a primary objective of the criminal justice system. The value which the community places upon human life is reflected in its expectations of that system." 29 The prisoner has been in custody since his arrest on 18 November 1997. I propose to back-date the sentence which I impose to commence on that date. I take into account the circumstance that three months of the prisoner's custody during the time since his arrest has been referable to the matters to which I earlier referred. 30 I am not of the opinion that there are special circumstances in this case which make it appropriate for the non parole period to be less than three-quarters of the term of the sentence for the purposes of the Crimes (Sentencing Procedure) Act 1999. I intend to reflect the three months of custody referable to other matters in the non-parole period as well as the overall sentence. This will produce a sentence in which the non-parole period is slightly in excess of the three quarters of the term of the sentence. 31 Jason Lee Rees I sentence you to a term of 4 years and 3 months imprisonment. That sentence will be taken to have commenced on 18 November 1997. I specify a non parole period of 3 years and 3 months. The earliest date upon which you will be eligible for release is 17 February 2001. ***** Last Modified: 10/03/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.