New South Wales Supreme Court CITATION : Regina v Harrison [2006] NSWSC 740 HEARING DATE(S) : 02/11/05-18/11/05; 14/07/06 JUDGMENT DATE : 21 July 2006 JURISDICTION : Common Law JUDGMENT OF : Michael Grove J at 1 DECISION : SENTENCE IMPOSED CATCHWORDS : CRIMINAL LAW AND PROCEDURE - SENTENCE FOLLOWING CONVICTION AT TRIAL - MURDER - STANDARD NON PAROLE PERIOD - ABORIGINAL AUSTRALIAN OF EXTREMELY DEPRIVED LIFE OPPORTUNITIES - REASONS FOR MITIGATING STANDARD NON PAROLE PERIOD PARTIES : Regina v Phillip Dale Harrison FILE NUMBER(S) : SC 2005/550 COUNSEL : G. Tabuteau (Crown) P. Bodor QC (Prisoner) SOLICITORS : Director Public Prosecutions (Crown) Adamson Solicitors (Prisoner) LOWER COURT DATE OF DECISION : n/a IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST MICHAEL GROVE J Friday 21 July 2006 2005/550 REGINA v PHILLIP DALE HARRISON SENTENCE 1 HIS HONOUR: Phillip Dale Harrison, the jury has found you guilty of the murder of David Spencer Martin and you now stand for sentence for that crime. 2 It is necessary for me to find facts, proved to the standard beyond reasonable doubt for the purpose of sentencing. 3 A commencement should be made several months prior to the killing. Over an extended period you had associated with and became a close friend of Edward Carr, who was generally known by his nickname Sorbie. This association included you both binge drinking alcohol and drug taking. Sorbie's participation in this involved his frequent and extended absences from his common law wife Davina Robb and their children. It is hardly surprising that Ms Robb agreed that she came to hate you for what she perceived to be your influence on him. 4 You were not with Sorbie, however, on 8 June 2004. On that occasion he was in the company of his cousin Darrell Martin. They partook of a shot of heroin at the Block in Redfern and then proceeded to Belmore Park, where they were drinking moselle. Later they obtained money by begging and, thus equipped, they returned to the Block. Darrell Martin described going to the "needle van" where a telephone number was obtained and eventually Sorbie obtained "a cap off the Lebanese fellow" for $50. 5 These two then went to Prince Alfred Park to inject the heroin which they had thereby obtained. 6 There were at least three other men at the park engaged in similar activity. They were the victim David Spencer Martin, Daniel Cullen and Leslie McIntyre, the lastmentioned being referred to usually as "LJ". 7 I do not know whether these two groups obtained drug from the same source, or whether it was contaminated or of high and therefore toxic purity, but Sorbie, David Martin, and to an extent Daniel Cullen had adverse reactions. Sorbie was unable to be awakened. LJ attempted some unsuccessful resuscitation of him after which ambulance and police were summoned. Sorbie was unable to be revived and he died. 8 I am satisfied that you formed the belief that in some way, one or more of the group consisting of David Martin, Daniel Cullen and LJ was responsible for your friend's death, which you considered was the result of his having been given a "hot shot". 9 Your concepts were no doubt blurred by the effects on your thought processes by your long life of alcohol and drug abuse, but you became obsessed with a notion that you should avenge what you thought had been done to Sorbie. Revelation of this obsession surfaced later in remarks that you made to Davina Robb, Patrick Lynette and Simone Whitton. 10 On the night of 9-10 September 2004 you were in the Block at Redfern near a fire where various people had gathered. 11 David Martin and Daniel Cullen entered the area. David Martin asked you to assist him in obtaining some "hammer" which is one of the street names for heroin. You did not immediately recognize Daniel Cullen, however you accepted $100 tendered by David Martin and went to one of the premises abutting Caroline Lane, a pathway which runs through the Block. 12 Some minutes later you returned with some drug. Enquiry revealed that Martin and Cullen had no syringe or "pick" in order to administer the drug. It was indicated that these could be supplied from a bag in the possession of "Uncle". I am satisfied that the person referred to as "Uncle" on this occasion was Trevor Thomas. 13 It was agreed that you and Thomas could have a share or a taste of the drug. 14 The four of you repaired into Caroline Lane for the purpose of injection. By this time you had recognized or realized that David Martin and Daniel Cullen were two of the three men present when Sorbie had his fatal drug dose and you were harbouring an intention to avenge his death. 15 You were armed with a knife, whether you obtained it whilst in the house getting the drug or had it beforehand is not established, but it is unnecessary to reach a conclusion on this aspect. It suffices to find that you were armed with one. To the extent that I consider your planning of the offence, my finding is limited to that fact. 16 David Martin set about preparing the drug for injection. You drew some mixture and there was some question raised about the quantity, in the sense of appropriate share, which you took. This issue was not resolved, as I am satisfied that you then used the knife and stabbed David Martin in the throat with fatal result. In the instant, he had been able to call a warning to Daniel Cullen who fled the scene and ultimately found safety at LJ's house. 17 You were, from time to time on this night, in the company of a young woman, Deanna Dargin, whose present whereabouts, it was said at trial, are unknown to you. You and she came to Davina Robb's house and in essence you told her that you had performed the killing. Later that day you spoke to a drug dealer named Craig Murphy in Kings Cross to similar effect. 18 I consider that it is likely that you were intending, after obtaining drug from Murphy, to leave Sydney but any such intention was thwarted by your arrest. 19 I do not ignore the challenges by your counsel to the credibility of the witnesses who gave evidence that you had spoken to them in terms amounting to admissions concerning motive, intent or responsibility for the killing. Whilst the detail of exactly what you said may not allow finding in precise terms, I am satisfied of the integrity of the substance of what those witnesses have testified emanated from you. 20 Before the night of the killing you had called on Davina Robb and claimed that a girlfriend of one of the men who was with Sorbie had told you who was responsible for his death. It is true that she said that you mentioned Daniel McCullen (sic) but what was said was in any event demonstrative of the obsession which you had formed about avenging his death. After the killing you went to her again and sufficiently advertised your act in words to the effect of "I did it, sis". The substance of what you said was confirmed by Deanna Dargin although her claim to Ms Robb that she was an eyewitness to what happened is to be discounted. 21 After the visit to Davina Robb you went to Kings Cross and spoke to Craig Murphy. I accept that he had heard from other sources about the killing at the Block but that does not discredit his evidence that you told him that it was you who had done the killing. His further testimony that you said that "I did it for my brother" because "no one else would have done it" is inherently consistent with other evidence of your motive and there is no basis for thinking that Craig Murphy could reasonably have been aware of this before to speaking to you. 22 There was also evidence from Patrick Lynette concerning enquiries that you had been making in and about the Block about who had given Sorbie the "hot shot" which was based, of course, upon your assumption that someone had deliberately given him one. 23 As was canvassed at the sentencing hearing, it is necessary for me to determine whether your offence falls within the middle of the range of objective seriousness for a crime of murder in order to comply with an approach to sentence which Parliament has decreed must be taken. 24 It has always been the Crown allegation that your relevant mental state, when you stabbed the victim, was that you had a specific intention to kill him. I am satisfied that this was the case. I reach that conclusion from a combination of facts in the evidence including the statements to which I have referred that you were going to avenge Sorbie's death, that you equipped yourself with the knife, the act of stabbing itself, and the subsequent remarks in which you revealed that you had achieved an aim of avenging Sorbie's death. Nothing said by you subsequently indicated that the killing was in any way unintended. 25 I do not ignore the circumstance that I have already mentioned that when you formed the intention to kill, your judgment would have been clouded by diminished ability to make sound decisions as a result of your many years of alcohol and drug abuse. Nevertheless, I regard your homicidal act, grounded in a desire for vengeance and executed by a sudden and intentional stabbing, as a crime of murder which lies in the category of the middle of the range of seriousness for that crime. 26 A consequence of that finding is that Parliament requires that I set what is described as a standard non parole period of twenty years imprisonment. I am authorized to depart from such an imposition but, if I do, I am required to record my reasons. The available reasons are limited to those set out in a table elsewhere in the sentencing statute. 27 It suffices to record that I am persuaded that you were not fully aware of the consequences of your actions by reason of a disability, namely the low functioning of your intelligence which had been compromised by extended substance abuse and repeated head trauma. I accept the opinion of the psychologist Ms Seidler that you are easily confused and, would have at the time of the commission of the murder, considerable difficulty in utilizing such cognitive resources as you do possess. In plain terms, you are, for multiple reasons, handicapped in making sensible and rational decisions as to how you should or should not act. 28 To assess an appropriate sentence, I should consider some cogent subjective matters. Although some of these point to lenience, others point in the other direction. 29 You were born on 17 May 1973. From a "placement history" obtained under Freedom of Information procedures from the Department of Human Services, Victoria, I observe that in November of that year when you were aged but six months, you were left by your parents at a home in Dandenong and they did not return to collect you. The document lists in stark bureaucratic abbreviation how you were repeatedly moved between foster care and what are described as family group homes, reception centres and departmental children's homes. 30 From July 1976 until February 1982 you were at one of the latter named "The Gables". It is recorded that your mother visited you spasmodically during what was a six and half years stay. In February 1982 you were, to quote the document, "released" to your mother but by December you were returned to a facility called "Swan House". 31 There is no record of your further contact with your mother up to the last date of the document which is October 1985 when you were returned to a "reception centre". However, I note that in July 1984 and in June 1985 when you would have been aged between eleven and twelve years you were on missing persons lists. I accept that during these times and since your mid teen years when you finally quit the institutions and foster families, you have essentially lived on the streets. 32 Your descent to where you now find yourself is graphically described in the handwritten document which was tendered to me by your counsel. At the sentence hearing I drew attention to the apparent discrepancies between some of the content of the document and the history recorded by Ms Seidler as given by you to her. In particular there are inconsistencies concerning your suffering sexual abuse while housed in institutions and about your relationship with your mother. 33 I am prepared to accept that you withheld from Ms Seidler information as to how you were treated by some people while you were in institutions because you found it embarrassing and humiliating to speak to her about such matters. I am not able to accept what appears to be a romanticized view of your relationship with your mother in the handwritten document. Given such detail as can be gleaned, Ms Seidler's recounting of your telling her that contact used to be a visit once or twice a year and that current contact was spasmodic, sees to me to be more realistic. 34 Those things said, the document reveals a moving account of the miseries through which you, effectively an abandoned aboriginal child, passed. It is a tragedy that in your adult life you appear to have spent it as a member of a drug and alcohol abusing group, often centred upon the Block at Redfern where you ultimately committed murder. 35 On any view of the facts and circumstances, your life since early teen years has been lived in a haze contributed to by petrol sniffing and poly substance abuse. This has led to a pattern of repeated arrest and conviction which is revealed on your record, although nothing of it approaches the seriousness of the present offence. 36 The evidence shows the extreme disadvantage of the social and economic environment in which you grew up. I observe what you have said in your letter about discrimination and ill treatment which you felt you received as an aboriginal person. It is not the case that you can expect special treatment by way of lighter sentence simply because of your aboriginality, but it is a matter of mitigation, which I will apply in sentence assessment, that your circumstances did deprive you of any real opportunity for self improvement or indeed any real opportunity to pursue a decent life within the general community. 37 It appears that you have never engaged in employment. You are untrained for any gainful activity and unskilled for any identifiable occupation. 38 I consider it is not possible to find in your favour that you are remorseful for your crime. Your letter asserts that at the time of the killing you were probably there "physically but not mentally" and you point to the jury verdict and say "if that was the case" you are ashamed and sorry that others lost loved ones as you yourself have suffered such losses. At most you offer a conditional apology which I do not find to be an indication that you harbour any relevant contrition. 39 Prediction of possible rehabilitation is fraught with unknowns. I agree with the observation of Ms Seidler that you have no real experience of positive, stable or pro social community living and that you face considerable odds in making a meaningful transition into the community, in particular, as she stated, in relation to independent living. 40 Your record shows your first adverse encounters with the criminal law in Eastern Victoria, a movement to the Melbourne area and then over ensuing years a cycle of movement between New South Wales and Victoria. I cannot be certain, but I suspect that you figuratively "slipped through the net" of any social assistance which might have been available because you were essentially an itinerant. 41 It is unfortunately not uncommon for a court to be faced with the duty of imposing sentence upon a person who has committed crime but who has a background of deprivation and lack of opportunity. You have suffered, in my estimation, such deprivation to an extreme degree. 42 That having been recognized however, it cannot be overlooked that you have committed an intentional killing to avenge an imagined wrong and for which you have, at most, some minimal and conditional remorse. 43 At the sentence hearing the victim's father read an impact statement, the receipt of which I formally acknowledge. Whilst what was said was brief, it was credible and emotionally moving. It can only be hoped that in the course of time you will come to understand yourself and appreciate the enormity of the consequences of your act in taking David Martin's life. 44 Your counsel has submitted that I should find special circumstances so as to justify departure in your favour from the formula in the sentencing statute by which the balance term during which you may be on parole is not to exceed one third of the non parole period. 45 My assessment of an appropriate non parole period and total term is such that, although I accept that there are factors capable of amounting to such circumstances, they do not in this case persuade me that I should make that departure. 46 It is agreed by counsel that you have been in custody solely in respect of this matter since 10 September 2004 and your sentence should commence on that date. 47 Phillip Dale Harrison, for the murder of David Spencer Martin, you are sentenced to imprisonment consisting of a non parole period of fifteen years commencing on 10 September 2004 and expiring on 9 September 2019 together with a balance term of five years commencing on 10 September 2019. 48 The earliest date of eligibility for release to parole is specified as 9 September 2019. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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